You already know you can't take it with you. But have you thought through what could happen as a result of the wealth you leave behind? Chances are, you created an estate plan in order to provide for your loved ones after you're no longer able to. If you're like most people, the last thing you want is for your careful planning to be a source of contention, bitterness, and expense for your family.
You may think that a will or trust contest couldn't happen in your family, and you might be right. Unfortunately, there are countless families in which an unexpected will contest created a permanent rift between formerly close family members. Will contests may last for months or even years, preventing all of your heirs from receiving what you intended them to have until the contest is resolved. Some simple measures can reduce the risk of this unwanted probate litigation.
Most people assume that only greedy would-be heirs contest wills or trusts. While greed may play a role in some cases, most will contests stem from different issues: complicated grief, existing family conflicts, and/or a misunderstanding about what the deceased truly wanted, and why.
Bearing this in mind while making an estate plan can be helpful. There are two things you want to do. First, minimize the desire of your heirs to contest your estate plan. Second, take steps to ensure if there is a will contest, it will be brief and unsuccessful. A will cannot be contested simply because an heir is unhappy with his or her bequest. There must be grounds for the contest. In Michigan, these include insufficient mental capacity to execute a will, an improperly executed will, or a will that was executed due to fraud or undue influence.
One way to minimize your heirs' interest in contesting your will is to communicate the reasons behind your choices. If your eldest and youngest children know that your middle child is receiving more in the will because she was your caretaker in your old age, they may accept the unequal bequests more easily. If you can, explain your reasoning when the will is drafted. If you're uncomfortable doing this face-to-face, be explicit about your reasons in the will itself, or in a letter that accompanies it.
Another very effective way to make your heirs think twice about contesting your will is providing an incentive not to: a no-contest, or “in terrorem” clause. A no-contest clause states that if an heir unsuccessfully challenges the will, he or she will receive nothing. Of course, this only works with heirs who would have received a valuable bequest in the will, and who would not want to jeopardize it by a will contest.
Even if your heirs understand your wishes, they may still stand to gain enough from contesting your will that they are willing to do so. In order to prevent such a contest from succeeding, you need to make sure they cannot successfully assert the grounds of mental incapacity, fraud, undue influence, or improper execution of the will.
To prevent a successful will contest, first and foremost you must make sure your will is properly executed. For this reason, it is highly advisable that you have a qualified attorney prepare your will.
First and foremost, you must make sure your will is properly executed. While it is not required by law to have an attorney prepare your will, it is highly advisable to do so. An experienced estate planning or elder law attorney will make sure the language of your will is clear, and that it complies with all legal requirements, such as being properly signed and witnessed, ideally by witnesses with no interest in your estate.
In order to prevent someone from arguing you lacked mental capacity to make a will, take steps to prove your competency near the time of drafting the will. This could include a mental examination by your doctor, or answering a list of questions for your attorney to satisfy him or her as to your competency. You may also want to videotape the signing of your will to leave visual evidence a court can review to confirm that you were in your “right mind.”
Lastly, strive to avoid allegations of undue influence. Let's say you have a younger friend or neighbor who helps you out a great deal, while your children do not, and you want to be generous to your friend in your will and leave your children only token amounts. You want to avoid your children asserting that this bequest was the result of the friend exerting undue influence on your decision-making process, perhaps turning you against your family. To be on the safe side, do not allow your friend to have any involvement whatsoever in the process of your estate planning, and communicate the reasoning behind your decision to your attorney and in writing to your would-be heirs. Make sure that your attorney has copies of this documentation.
Of course, there is no iron-clad way to prevent a will or trust contest. Trusts, by their nature, are somewhat less vulnerable to being contested than wills, so you may want to discuss this option with your estate planning or elder law attorney. To learn more about reducing the risk of conflict over your estate, we invite you to contact us to schedule a free initial consultation.