A will or trust contest can derail your final wishes, rapidly deplete your estate, and tear your loved ones apart. But with proper planning, you can help your family avoid a potentially disastrous will or trust contest.
If you are concerned about challenges to your estate plan, consider the following:
1. Do not attempt “do it yourself” solutions. If you are concerned about an heir contesting your estate plan, the last thing you want to do is attempt to write or update your will or trust on your own. You will want to title your assets properly to obtain your desired results. Only an experienced estate planning attorney can help you put together and maintain an estate plan that will discourage lawsuits.
2. Obtain a note from your doctor that you have the capacity to make or sign a will.
3. An in terrorem clause is a provision in a will and trust that penalizes an interested person for contesting a will or suing the estate and automatically disinherits them from the will upon such contest. In 2012, this provision was upheld in the case Stewart v. Stewart, 230 Ariz. 480 (Ct. App. 2012) which stated that such clauses were generally enforceable.
4. Let family members know about your estate plan. When it comes to estate planning, secrecy breeds contempt. While it is not necessary to let your family members know all the intimate details of your estate plan, you should let them know that you have taken the time to create a plan that spells out your final wishes, the names of your fiduciaries and the location of your signed documents.
5. Use discretionary trusts for problem beneficiaries. You may feel that you have to completely disinherit a beneficiary because of concerns that a potential beneficiary will squander their inheritance or use it in a manner that is against your beliefs. However, there are other options than completely disinheriting someone. For example, you can require that the problem beneficiary’s share be held in a lifetime discretionary trust and name a third party as trustee. This will insure that the beneficiary will only be entitled to receive trust distributions under terms and conditions you have dictated. You will also be able to control who will inherit the balance of the trust if the beneficiary dies before the funds are completely distributed.
6. Keep your estate plan up to date. Estate planning is not a one-time transaction; it is an ongoing process. Therefore, as your circumstances change, update your estate plan. An up to date estate plan, properly witnessed and notarized, shows that you have taken the time to review and revise your plan as your family and financial situations change. This, in turn, will discourage challenges since your plan will encompass your current estate planning goals.
By following these tips, your heirs will be less likely to challenge your estate planning decisions and will be more inclined to fulfill your final wishes. If you are concerned about heirs contesting your will or trust, you should seek professional advice now.
