13 Strategies for Avoiding Challenges to your Estate Plan

Your thoughtfully constructed estate plan could be disrupted by a challenge from

a relative or friend who is unhappy with his or her inheritance (or lack of one).

Here are 13 effective strategies that you can use to reduce the likelihood of your

estate plan being challenged.

#1. DON’T PROCRASTINATE

If you wait to create an estate plan until you are diagnosed with a cognitive

disorder or a serious illness that requires you to take medication that could affect

your memory or judgment, your estate plan will be more vulnerable to attack.

Your relatives may challenge your estate plan based on diminished capacity or

undue influence exerted on you by a caretaker.

Instead, it is better to create your estate plan when you are in good health and

are thinking clearly. You can always update it later if circumstances change.

#2. WORK WITH AN EXPERIENCED ESTATE PLANNING LAWYER

Now is not the time for a do-it-yourself solution. An experienced estate planning

lawyer can ensure that your will and other estate planning documents are properly

executed as required by state law.

Your will should be signed by you and two witnesses. They may need to watch you

and each other sign. Your signature on your durable power of attorney, health care

power of attorney, and living will should be witnessed by two witnesses or a notary.

Certain individuals should not serve as witnesses. Your will should not be witnessed

by a beneficiary. Your health care power of attorney and living will should not be

witnessed by relatives, beneficiaries, or your health care providers.

Your lawyer can take extra steps to create safeguards and clear language to

avoid challenges. Additionally, your lawyer can ensure that you legally revoke any

previous wills if you make a new one or make it clear that you are supplementing

a will with a codicil.

#3. PROVE YOUR CAPACITY AHEAD OF TIME

If you expect a challenge to your will or another part of your estate plan, be sure that

you and your lawyer document your mental capacity at the time you sign your estate

planning documents. There are several ways your lawyer may be able to do this, such

as testing your competency by asking a series of questions or having you medically

evaluated. Your primary physician or a specialist can prepare a report that details your

current mental capacity and your ability to understand the terms of your estate plan.

If you have been diagnosed with a medical condition that affects your cognitive

ability or you are elderly, you may still have the necessary capacity to sign a will

or make other estate planning arrangements since the question of capacity is

time-sensitive. The relevant time of determining capacity is when you sign the

document. If your medical condition causes periods of mental incapacity, so long

as you sign when you are lucid, the document should be valid.

You may also want to video record the signing of your will as further proof that you

understood what you were signing and signed voluntarily free from undue influence.

#4. USE A SELF-PROVING AFFIDAVIT

Some states allow witnesses to sign a self-proving affidavit that states that they

saw you sign your will and that, at the time, you seemed to have the capacity to

sign it. This document can provide further evidence that you had the necessary

mental capacity to sign your will. Witnesses also have the added benefit of not

having to repeat this information in open court when your will is probated.

#5. AVOID THE APPEARANCE OF UNDUE INFLUENCE

Undue influence generally means that a beneficiary has pressured or persuaded

the testator to make a will to the extent that the testator’s independent decision making ability has been overpowered. As a result, the testator makes a will favoring

the beneficiary that he or she would not otherwise have made.

If you think that your family may argue that another person had such control and

influence over you, you must establish ahead of time that this is not the case.

Make sure that anyone who stands to benefit from your will or other estate plan

arrangement is not present or otherwise involved with the creation of your estate

plan. These people should not accompany you to the attorney’s office, make your

appointment with an estate planning lawyer, or talk to your lawyer. These steps

can help establish that you are making the estate plan according to your wishes

and not because of someone else’s influence.

#6. USE A REVOCABLE LIVING TRUST

Trusts can be more difficult to contest than wills because the law on challenging

trusts is sometimes less clear and less well-developed than the law on contesting

wills. Also, having set up your trust considerably before your death and managed

your assets is strong evidence that you were competent.

#7. INCLUDE A NO-CONTEST CLAUSE

A very effective method of avoiding challenges to your estate plan is to include

a no-contest clause in your will. This is a provision that states that if someone

challenges your will, they will not receive the property you left them. However,

the person who may challenge your will has to have something important enough

to lose so that he or she will not take the risk of losing this property if he or

she challenges it. This option will not work for someone you want to disinherit

completely because he or she was already going to receive nothing due to the

language in your will.

This option may not be effective in all jurisdictions. Some states – like Florida –

will not enforce no-contest clauses. Other states have exceptions for when these

clauses will not be enforced. Be sure you check with an estate planning lawyer in

your state before adding a no-contest clause.

#8. TALK TO YOUR FAMILY

Many challenges to estate plans arise out of confusion between family members.

A parent may have informed an adult child of an expected inheritance and then

the will says something completely different. Children who receive different shares

may think that another child influenced the parent to make things unequal. A

previously unknown child may appear claiming a share of the estate.

To avoid these potential problems, talk to your family and explain the arrangements

you have made and why. Some people are hesitant to discuss their estate plans

with family because they find the subject depressing or fraught with conflict.

However, avoiding this discussion only postpones the conflict among family

members until after your death when only your estate planning documents can

speak for you. When you explain your intentions to your family members in person,

they are more likely to accept that your estate plan truly reflects your intentions

and they will be less likely to challenge it.

Additionally, you may need to include specific language in your will or other estate

planning documents to ensure your intentions are clear. For example, if you want

to disinherit a child, you may need to explicitly state so. Simply not mentioning

him or her as a beneficiary will probably not be enough to eliminate any legal

right to an inheritance.

Sometimes, loved ones fight over family heirlooms and items of sentimental value.

To prevent such squabbles, you may want to provide a memorandum or letter

that lists these items, the person you would like to have each item, and the reason

why you chose this person.

#9. PURCHASE LIFE INSURANCE

Your dependents may be entitled to reasonable support from your estate after

your passing. To ensure that you can meet this standard, consider purchasing life

insurance for their benefit that is enough to support them until they reach the age

of majority (18 in most states). A term life insurance policy may be a small price

to pay each month to avoid a costly will contest down the line.

#10. SUBMIT YOUR WILL TO PROBATE WHILE YOU’RE ALIVE

A few states allow you to submit your will for to court for authentication while you

are alive. This preemptive strategy allows you to have a judge declare your will

valid now so that you don’t have to worry about any potential challenges later.

This process is similar to probating your will after your death. You can bring in

witnesses to confirm your mental capacity, but you can also express your wishes

yourself. Similar procedures are available to validate a trust.

#11. PLACE YOUR WILL IN A SAFE PLACE AND LET SOMEONE TRUSTED KNOW

Don’t go through the time and expense of creating your estate plan and then make

it impossible for anyone to find your will. Courts generally require the original

will - not a copy - so you need to leave clear instructions to a trusted person about

the location of your will. Also, avoid placing it in a safe deposit box since your

loved ones may not even know of its existence or may have to take additional

legal steps to open it.

#12. KEEP YOUR PLAN UP TO DATE

An estate plan is meant to be a living document that changes over time. You might

want or need to make changes to your estate plan when:

• You acquire additional property.

• You want to change a fiduciary, like a trustee, executor or agent.

• Your health changes.

• You have more children.

• You get married.

• You get divorced.

• You become estranged from a beneficiary.

• You want to change a beneficiary.

• A beneficiary or fiduciary has died or became disabled.

These circumstances may impact your wishes and the provisions of your estate

plan. Make a follow-up appointment with your estate planning lawyer every few

years or after any major life event to review your plan and make any necessary

changes. If you fail to do so, there may be unintended consequences, such as:

• A person you intended to leave a gift to gets nothing.

• An heir has a claim or a right to an inheritance you didn’t want him or her

to have.

• The shares of beneficiaries are not what you intended them to be.

• Property you intended for one person goes to someone else.

• A beneficiary has a claim for the value of property you sold when there is

no substitute gift.

When you make regular changes to your estate plan, this implies that you have

taken the necessary time to review and amend your plan. Your plan is more likely to

reflect your current wishes and your beneficiaries may be less likely to challenge it.

#13. DESTROY OLD WILLS OR KEEP A PREVIOUS WILL AS WILL CONTEST INSURANCE

Whether you should destroy previous wills depends on your situation. When you

work with an experienced estate planning lawyer, he or she will make sure that

your new will is dated and includes language that revokes any prior wills.

However, an earlier will does not become worthless just because a new will has

been executed that revokes it. If the latest will is successfully challenged, the next

most recent will can become operative again.

If the previous will benefits substantially the same beneficiaries as the current will,

then you should consider keeping the previous will as “will contest insurance.”

An heir that is left out of both wills would need to set aside both of them to

accomplish anything. On the other hand, if you would prefer no will to your earlier

will, you may wish to destroy the prior one to keep unscrupulous beneficiaries

from concealing the new will.

State law dictates the action necessary to destroy an old will, which usually includes

taking any of the following actions against the will:

• Tearing it.

• Burning it.

• “Obliterating” it.

The attorneys at Penglase and Benson can help you quickly and easily set out what your wishes are in a Will, Living Will and Power of Attorney and can help you set them up in such a way as to ensure that your wishes will be honored when the time comes. The process is much easier and faster than you think . Give us a call at 215-348-4416 to find out how easy it is to put a plan together.