How to Make a Will that Cannot Be Contested
When creating your will to include in your estate plan, you are making sure your last wishes are going to be implemented. All that careful thought and planning could be for nothing, though, if anyone effectively contests your will. Guaranteeing your will cannot be contested is going to ensure your final objectives are fulfilled.
Who can challenge?
Contesting a will can only be carried out by your spouse, children, or those added to your will (or a prior will). For contesting a will, the individual must file a contest while the probate process is ongoing (the court process that executes a will).
There needs to be a legitimate legal question concerning the will for a contest to be considered. An individual can’t just challenge a will if they don’t agree with it, were not included in it, or are upset or angry concerning the contents of the will.
The below are reasons for contesting a will:
An issue concerning the execution of the will is one of the reasons to contest it. Should your will not be signed, witnessed, or completed properly in accordance with the laws of your state, it could be null and void. Due to this, it is vital that you either have an estate planning attorney devise your will or that you carefully adhere to your state’s rules should you complete one on your own.
Another frequent reason to contest will is if you have a serious issue with your mental competence (referred to as “sound mind”) when signing your will. To sign a will, you only need to figure out your assets, who your beneficiaries and heirs are, and the impact of the will—it is not necessary that you be one hundred percent without mental issues. If you are concerned that there could be any question about your mental competence, you should speak with your attorney, that may suggest to you to get video footage of the signing or to acquire medical documentation.
Fraud and unwarranted influence
One other reason for contesting a will is the testator’s having been coerced into signing it; for instance, when someone told you were signing some other type of document but instead gave you the will.
Unwarranted influence is another reason for contest and occurs when someone has influence or power over the individual signing the will; for example, a live-in caregiver that enforces power over every little thing the testator does. If you are worried that there could be claims of unwarranted influence, speak with an attorney that can help you prepare evidence proving otherwise.
Preventive measures you can take to avoid a contest
For preventing a contest to your will, be sure your will is carried out properly and that you take all the preventive measures your attorney suggests avoiding any possibility of a contest.
It is also wise to speak to your heirs concerning what is in your will and the reasons why. Talking about this during your lifetime can avoid any unwelcomed surprises and gives your heirs the opportunity to have a discussion with you and understand your reasons. It may also be a good idea to voice loving emotions and thoughts to your heirs so they do not think that the will means you do not love them.
Whereas you can disinherit any of your children, grandchildren, or other family members, a lot of states are not going to allow you to totally take your spouse out of your will. In doing so, the court is going to grant a right of election to the spouse to acquire a specific percentage of your estate, so it is a good idea to plan for this yourself.
Another option: Living trusts
To hinder a will contest, you might want to avoid having a will entirely. Revocable living trusts enables you to put all your assets into a trust during your lifetime. You remain to use and expend your money and assets, but they are actually owned by the trust. Following your passing away, the assets are allocated to your trust beneficiaries in accordance with the provisions of the trust.
A trust does not go through the probate process in court and can’t be contested in a lot of cases. Revocable living trusts stay private, so when an individual is not listed in it, they aren’t informed of the details contained in it. If you place all your assets into a trust you have little need for a will, although it is typical to prepare a pour-over will that places any overlooked assets into the trust when you pass away.
Taking a few preventive measures is going to help guarantee that your will cannot be contested. With knowledge that your final wishes are going to be honored can give you great peace of mind.
How to prevent your family from contesting your will. LegalZoom. (n.d.). Retrieved January 25, 2023, from https://www.legalzoom.com/articles/how-to-prevent-your-family-from-contesting-your-will
There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.
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