Will challenges can cause chaos within your family dynamic following your passing. If you have gone to the trouble of establishing an estate plan, it is likely safe to assume that providing for your loved ones was a principal motivating factor in the creation of that plan. If so, you certainly do not want a Will contest to derail your carefully constructed plans. One of our Tucson estate planning lawyers at Morris Hall PLLC explains how to discourage a challenge to your Will.
The Probate Process
For those who are unfamiliar with the probate process, it may help to provide a brief explanation of that process first. Probate is the legal process that most estates must go through. One of the numerous functions of the probate process is to authenticate the decedent’s Last Will and Testament. The individual appointed as Executor in the Will usually submits an original copy of the decedent’s Will to the appropriate court to initiate probate.
Will Challenges: What Are They?
Once probate has been initiated, if no one challenges the validity of the Will submitted to the court, the probate process will proceed as planned. If, however, someone does contest the validity of the Will, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful and the Will is declared invalid, the state intestate succession laws will be used to probate the estate unless there is another valid Will presented to the court. If the contestant is unsuccessful, the probate process resumes, using the terms of that Will to distribute estate assets.
What Can I Do to Prevent Will Challenges?
The reality is that there is no way to guarantee that your Will won’t be contested; however, there are things you can do to discourage contestants and decrease the likelihood of a successful contest should someone choose to challenge your Will. For example:
- Do not try to create a Will without an attorney. Using a “fill-in-the-blanks” form you found on the internet may seem like a way to save time and money; however, those forms greatly increase the odds of a Will contest because they are so often poorly drafted. That, in turn, actually costs your loved ones more time and money. Moreover, consulting with an estate planning attorney when you create your Will provides a disinterested witness who spent considerable time with you around the time you executed your Will. If someone contests your Will by claiming that you lacked “testamentary capacity” at the time you executed the Will, your attorney can provide a first-hand opinion on your state of mind.
- Schedule a doctor visit close to the time you execute your Will. If possible, have a complete physical done around the time you execute your Will to provide additional evidence of your state of mind in case someone questions it after your death. Your doctor’s notes create an excellent record of your physical and mental capacity at the time you executed your Will.
- Make probate avoidance an estate planning goal. Making probate avoidance a priority when you create your estate plan decreases the likelihood of a Will contest because most of your assets will pass outside of your Will. Assets that are gifted in your Will must go through probate, subjecting them to the possibility of a Will contest. Non-probate assets, however, bypass probate altogether, meaning they cannot be the subject of a Will contest. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Provide explanations in a Letter of Instructions. A Letter of Instructions is a letter that is written by you explaining anything not already covered elsewhere in your estate plan and/or expressing your wishes. You can use this option to explain why you made certain decisions that might be controversial or that are likely to cause a challenge.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will; however, the beneficiary must be gifted something in the Will that he/she has to lose for a no contest clause to be effective. State laws vary with regard to how they approach no contest clauses. In the State of Arizona, ARS § 14-2517 governs no contest clauses, stating that “ A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings or actions relating to the estate is unenforceable if probable cause exists for the contest, proceedings or actions.” In other words, if the contestant had legitimate concerns about the validity of the Will, a no contest clause will likely not be enforced.
Contact a Tucson Estate Planning Lawyer
For more information or if you are dealing with will challenges, please join us for an upcoming FREE seminar. If you have additional questions about how you can limit the likelihood of a Will contest after you are gone, contact one of our experienced Tucson estate planning lawyers at Morris Hall PLLC by calling 520-320-5100 to schedule your free consultation today.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.
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