There is an estate planning version of an old saying that applies here, which states: "Where there is a will, there is a relative". There are things you can do to prevent a battle over your estate when you pass away. A small percentage of wills and trusts written in America are formally contested when the person who made the will or trust dies. But when a dispute happens, the dispute is often ugly and in most cases the case results in close relatives never speaking amicably for the rest of their lives.
Avoid Will Contests.
The real reason people quarrel over an estate is because they don't like the outcome of the estate after someone passes away. I have never seen a successful estate contest based solely on that the person doesn't like the result presented to them. What often happens is someone is frustrated with the outcome of an estate settlement because of a perceived legal basis to challenge the will, trust or estate whether that includes a claim that validity requirements were not met, or whether someone had the capacity to understand what they were doing when they created the will or trust, or whether someone adversely influenced the will or trust creator.
If you suspect there will be a challenge to your estate some people say "they can fight all they want over my estate--I will be dead and I don't care". Others may say it is worth taking a few steps now to reduce the likelihood of World War III when you pass away.
Here are a few things you can do to in order to minimize the possibility that the people that mean the most to you will clash over your assets when you pass away:
Getting good advice will aid in preventing the struggle in meeting all of the formalities that are required to make your documents valid and your estate documents will be written in a way that they can not be subject to different interpretations.
No Contest Clause.
If you anticipate a contest from one or more people, your estate documents can be written in a way that focuses on minimizing the risk that a particular person would benefit from contesting your estate. The language of a no contest clause says something like "if any person contests this will, any share in my estate given to that contesting person is revoked". The no contest clause may deter a disgruntled heir from contesting your estate plan.
Have Good Capacity.
Waiting to create or change your estate plan until your mind starts to slip is dangerous. Your estate could be successfully challenged if at the time you created it, you failed to have the necessary capacity to understand what you were doing.
Don't Appear Influenced.
It does not look good if after someone dies when an heir accurately states "my sister called the attorney to make the appointment for dad; drove dad to his meeting, and told the lawyer what dad wanted his will to say, and the will left more to her than other children, and she was there when the will was signed".
Whether there was adverse influence or not, that set of circumstances doesn't sound too good. The suggestion is don't let yourself be persuaded to leave a bequest when it doesn't feel right, don't even let it appear that you are being adversely influenced.
Consider Using A Trust.
While trusts can be contested almost as easily as a will can be contested, it may make sense to create one or more trusts to minimize the risk of dispute. The terms of a trust can remain private so that someone that is excluded from a trust may not view the terms of the trust. Your will becomes public record and is sent to beneficiaries when you pass away. Instead of leaving assets outright to someone who might contest your estate, consider leaving those assets to a trust for the benefit of that person. This way the potential challenger is not a participant in the estate settlement. Only the trustee of the trust for the benefit of that potential challenger is a party to the estate settlement.
Every will, estate plan and family are different. The dynamics can and do vary widely. Generally speaking the estate planning legal instruments state what you are doing and who you are appointing to handle certain aspects but the proper additional and informal communication to your future heirs will reveal why you did what you did and when a testy heir understands why you did what you did they may be less likely to cause a problem. Let's say mom left 80% to child "A" and 20% to child "B". After mom dies, child "B" may hire a lawyer and search for some legal basis to challenge mom's will or trust. But if during mom's lifetime mom had communicated to child "B" something like "the reason I transferred the way I did is that child "A" sacrificed her career to take care of me for 20 years, took me to doctor's appointments--I don't know how I would have made it without her. You however, were not around." Is this easy to communicate? No. But the best way to communicate the why is to make a letter or have a family meeting. You can make a video. You know best how to communicate your "why" based on your particular circumstances and family dynamics. Do not underestimate how communicating your blunt truth to future heirs may just be the best thing for everyone involved.
So--I detest estate disputes professionally and I stay away from them because I am more in the avoid estate disputes part of the profession. I hope these suggestions will encourage you to make some steps to help ensure there is no dispute of your estate.
If you would like to speak with me for a free consultation, please call 307.200.1914.
Law Offices of Gayla K. Austin