The best way to address concerns raised by assets in the electronic age from an…
5 Estate Planning Tips to Avoid Disputes
- Insert a no-contest clause
When a will contest seems likely, an in terrorem clause may be beneficial. An in terrorem clause, also known as a “no-contest” clause, generally provides that a bequest will fail if the beneficiary initiates or participates in a will contest. In other words, the beneficiary must either accept the will or risk losing any benefits received. The clause can be an effective deterrent to a will contest, but only if the potential will contestant has something to lose. For instance, a beneficiary who receives only a nominal bequest, has very little to lose by bringing a will contest. Conversely, a beneficiary given a more substantial bequest may be more hesitant to bring the contest for fear of losing the bequest.
- Reinforce your wishes verbally
Creating your will can understandably feel like a private endeavor, but keeping it secret from loved ones might lead to unintended turmoil after your death.
People who are blindsided might suspect you omitted them by accident or were unduly influenced by someone else, such as a caregiver or spouse. Announcing your wishes to loved ones while you’re alive lets you explain your actions. This makes it clearer that your decisions are yours alone and makes them tougher to contest successfully. It also gives people more time to come to terms with your wishes and can add context, he adds, which might help defuse any resentment.
- Have a doctor verify your mental health
For a will to be valid, the person making it must be able to come to his or her own decisions. If disgruntled heirs can raise doubt about whether you were in your right mind, they could persuade a court to disregard your wishes. To eliminate this possibility, she strongly encourages older clients to include a doctor’s note that confirms their mental capacity with the will. Even those who don’t show red flags of cognitive decline should err on the side of caution.
- Self Proving Affidavit
A self-proving affidavit is a sworn statement attached to a will, signed by the will maker and his or her witnesses, that attests to the validity of the will. It is not necessary to include a self-proving affidavit. A properly written, signed, and witnessed will is legal without it, but including one may help make probate go more quickly.
A typical self-proving affidavit looks something like this:
We, _______ and_______, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her] ), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
Typically, witnesses sign the self-proving affidavit at the same time that they sign the will itself, immediately after watching the will-maker (called by the legal term “testator” in the sample statement) sign it.
- Avoid Undue Influence Possibilities
One of the foremost attacks to a will may be invalidation due to undue influence or coercion. It is extremely important to protect a will from these claims. One suggestion might be to request that the client come to the attorney’s office without other family members or intended beneficiaries. Another recommendation might be to prepare a letter discussing the client’s desires and what he or she wishes to accomplish in the will. For example, if one child is particularly aggressive, the client might prepare a letter stating that it is her desire to benefit each of her children equally and that if a conflicting will appears, it should be presumed to be the product of undue influence unless prepared by her usual attorney and accompanied by a clear statement indicating otherwise.