A thoughtfully created estate plan is key to reducing challenges by family members or other outside influences. Below are 10 strategies to discuss and implement with your estate planning attorney that could potentially reduce challenges to your estate plan and create a more meaningful legacy for your beneficiaries.
1. DON’T PROCRASTINATE!
If you wait to create an estate plan until you are hospitalized or diagnosed with a health condition that impairs your mental health and cognitive functioning, your estate plan will be more vulnerable to attack. Your relatives may challenge your estate plan based on lack of capacity or undue influence from your caregivers and supporters. Instead, plan earlier and when you are in good health and capable of exercising good judgment. A well-drafted estate plan includes contingencies for later disability and can be amended as circumstances change.
2. AVOID DIY FORMS AND CHEAP INTERNET KITS
Now is never the time for a do-it-yourself solution. What you don’t know about state probate and estate administration laws, can come back to haunt your heirs! And poorly worded language concerning gifts of property in a Will can lead to conflict between beneficiaries. Further, not only does your Will need to be witnessed, it also needs a self-proving affidavit signed by a notary to avoid challenges to the validity of the Will if the witnesses cannot be later produced in court. Certain individuals should not serve as witnesses to your Will and estate planning documents. An experienced estate planning attorney, however, can ensure that you create a Will and other estate planning documents that are properly drafted and executed with all the formalities required by state law.
3. AVOID THE APPEARANCE OF UNDUE INFLUENCE
Undue influence can occur when one person influences another to make a Will, or a gift under a Will, that is contrary to what the person would have done, but for the undue influence. Make sure that anyone who stands to benefit from your Will or other estate planning documents is not present or otherwise involved with the creation of your estate plan. These people should not accompany you to your estate planning attorney’s office, make your appointment with the estate planning attorney, or speak directly with your estate planning attorney. Taking these precautions can safeguard your estate plan and show that your estate plan reflects only your wishes and that it was not the product of someone else’s influence.
4. USE A REVOCABLE LIVING TRUST
Trusts are more difficult to contest than Wills because the law on challenging trusts are not as well-developed. Also, the penalties for present and future income beneficiaries who contest a Trust can be steep, including loss of the right to distributions! Additionally, requirements and formalities for creating a Trust are less stringent than the formalities for making Wills. Unlike a Will, a Trust does not have to be witnessed or require a “self-proving Affidavit”. As such, a revocable living trust provides greatest flexibility as it can be easily amended and does not have to be revoked or “republished” by codicil every time you want to make a change. Also, funding your trust during your lifetime, and consistently exercising oversight and management of trust assets can be strong evidence for capacity.
5. INCLUDE A NO-CONTEST CLAUSE
One method of averting challenges to your estate plan is to include a no-contest clause in your Will and Trust documents. This is a provision that states that if someone challenges your Will or some aspect of the Trust instrument, they will not receive the property or income you left them and may even be treated as they have pre-deceased you. However, the person who challenges needs to be a beneficiary of the Will or Trust—someone who stands to have something important enough to lose. This option is therefore not effective against someone you are disinheriting completely because they stand to gain more if they challenge the document and win. Thus, if you plan to disinherit someone, consult with your estate planning attorney about other ways to safeguard your plan from possible challenges by disgruntled natural heirs.
6. 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 “secret” or unacknowledged 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 they fear conflict. However, avoiding these discussions only postpones the conflict among family members until after your death at a time when their judgment will be clouded by grief and when only the estate planning documents can speak for you. Instead, when you explain your intentions to your family members up front, and 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.
You may also 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, or exclude someone from acting on your behalf in the event of your incapacity, you will need to explicitly state so. Simply not mentioning them as a beneficiary or potential fiduciary will not be enough to extinguish a legal right to an inheritance or to act as an executor, trustee, or guardian under your estate plan.
Finally, sometimes the most contentious fights between family members after the death of a loved one are over family heirlooms and items of sentimental value. To prevent such disputes, you may want to provide a memorandum or letter that lists these items, and identifies the person you would like to have each item, and perhaps even the reason why you chose that person for the item.
7. PURCHASE LIFE INSURANCE
Your spouse and minor children may be entitled to reasonable support called a “family allowance” from your estate after your death. If your heirs include a spouse and children who are not related to one another, consider purchasing and maintaining life insurance for their benefit that is enough to support them. In the case of a spouse, it should be enough to support them for at least one year after your death and to purchase or pay off the homestead. And in the case of minor children, a life insurance policy that is sufficient to provide for their needs until the last child reaches the age of 18. A term life insurance policy may be a small price to pay each month to avoid a costly contest to your estate plan down the line. Also, you should consult with your estate planning attorney when you purchase the policy and make sure you have named a trustee or guardian for any insurance proceeds that will benefit a minor child.
8. PLACE YOUR WILL IN A SAFE PLACE
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 will require your executor to offer the original Will for probate. Leave clear instructions to a trusted person about the location of your Will and other estate planning documents. 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, such as a court order, just to open the safe deposit box to get the Will. Although a copy of a Will can be probated under extreme circumstances, the extra steps required by law to probate a copy of a Will can be time-consuming and costly to your heirs. Keep your original Will with other important documents such as life insurance policies, retirement plans, property deeds, vehicle titles, and bank statements to aid your executor with identifying and locating all your assets. A fire-proof safe or filing cabinet in your home office is a good location where most people would think to look first.
9. DESTROY OLD WILLS
Finally, if you have made substantial changes to your estate plan, be sure to destroy the prior one to keep unscrupulous beneficiaries from trying to probate an earlier, more favorable Will and concealing the new Will. The action necessary to truly revoke an old Will, usually includes a physical act such as tearing it up. In Texas, there is a presumption that a Will has been revoked by a physical act if only a copy is produced and the original cannot be located. A proponent of a copy of a Will has the additional burden of proving the original Will was not revoked.
10. KEEP YOUR PLAN UP TO DATE
An estate plan is meant to be updated as you progress through life. Consider updating your estate plan when:
- You acquire additional property
- You want to change a fiduciary, like a trustee, executor, agent, or guardian for your children
- 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 incapacitated
- A charitable organization you made a gift to has changed its priorities or management
These circumstances may impact your wishes and the provisions of your estate plan. Make a follow-up appointment with your estate planning attorney every few years or at least after any major life event to review your plan and make any necessary changes. 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.
An estate planning attorney at Law Office of Adriane S. Grace, PLLC can help you safeguard your estate plan from future challenges. Contact us to schedule your initial estate planning meeting to discuss further.
