Your will is almost certainly the most important estate planning document you can have when it comes to ensuring that your wishes are honored after you pass.
But wait—did you take the necessary steps to help ensure that your heirs won’t try to dispute and that it will hold up in court? Emotions can run high after a loved one’s death and if one or more of your heirs believes they weren’t treated fairly, they may decide to contest your will.
Who can contest a will?
First, only your spouse, children and anyone named in your will are able to contest it. If it excludes your fourth cousin Sally, she won’t be able to show up and argue that she should inherit your 401(k) plan.
Second, understand that contesting a will is something that’s reserved for legitimate reasons, such as your incapacity or fraud. Your heirs can’t contest it just because they don’t agree with your final wishes, or if their feelings are hurt about how you decided to distribute your assets.
What can I do to protect my will?
Here are some tips to help your heirs avoid a will contest:
1. Set up your will properly. As is the case with almost all legal matters, creating a will is NOT a DIY project. Here are some of the things to include in your will:
- The full names of all of your intended heirs.
- The names of anyone you want to specifically exclude.
- Your will should name both an executor and alternate executor.
- If you have minor children, your will should name their guardian(s).
- In most cases, you must sign your will in the presence of two independent witnesses.
2. Review your will often. As your life circumstances shift, your wishes may, too. Make sure that you look over your will at least annually and as your health conditions change.
3. Remember the in terrorem clause. I like this term, otherwise known as the “no-contest” clause because it has the word terror in it—and you want to include it to “scare” your heirs away from the idea of fighting over your final wishes. However, this clause will only work as intended if you’re okay with willing something valuable to a potentially dissatisfied heir. If that heir contests your will and loses, they won’t get anything at all. Note that there are different implications depending on the state in which you live. In some states, a no-contest clause isn’t enforceable if there is probable cause, such as if you were under undue influence when you executed the will.
4. Talk to your family about your will. If you’re married, be aware that many states will not let you disinherit your spouse (although you may do so with siblings, children, grandchildren, and other family members). While discussing your final wishes may be an uncomfortable topic, it can save a lot of drama for your family after you’re gone.
5. Consider using a trust. A revocable trust can take the place of a will and keeps the courts out of your business. You may change a revocable trust at any point in time while you’re alive. Best of all, it’s a private document, whereas a will is publicly available after it’s been filed in probate court following your death.
As with most complex things in life, estate planning is best done with guidance and input from an expert. If you’d like to review (or get started on) your estate plan, click here to schedule a complimentary, no-obligation meeting with our estate planner, Matt Danner.