One of the main reasons that you want to have an estate plan in place is to ensure that your final wishes are carried out properly when the time comes. While in most cases, your friends and family members will want to make sure that they do what you desired with your estate, that is not always the case. If someone feels that your estate plan was unfair or unjust for some reason, they can challenge it in court.
When creating your estate plan, you always want to make sure that it is written in a way that will ensure that challenges are either impractical or unsuccessful. Of course, this is especially important if you have a potential heir that will not be receiving an inheritance for some reason, but even if that is not the case, making a strong estate plan just makes sense.
Confirm Your Competence
One of the most common reasons that an estate plan is challenged is that someone claims that you were not competent to make the plan, or to have it updated, at the time it was signed. They may claim that you were mentally incapacitated, under duress, or coerced by another party.
If you want to be sure that this cannot happen to your estate plan, you may consider having a medical examination performed and the doctor sign off to confirm you are mentally competent. You can also have a psychologist or other professional confirm your mental capacity is not diminished. Having the execution of your Will videotaped can also help to show that you are speaking freely and in a good state of mind. Your attorney should also interview you alone, so he or she can testify that you had sufficient mental capacity to make a Will.
Better Not To Disinherit?
It’s wise to mention all your legal heirs, even if you don’t want to leave anything to one or more of them. For one thing, you may have already helped them financially, to such an extent that your gifts were really an advance on their inheritance. In the case of a loan that hasn’t been paid back, their inheritance (or a part of it) could be forgiveness of the remaining loan. It’s important that you acknowledge everyone who would normally inherit from you, whether or not they’ll get an equal share or any share at all, because listing their name proves that you knew who your family was, and nobody can overturn your Will based on an alleged memory disability. But most important, perhaps, is the finality of disinheriting someone. Your hurt and disappointment may be great, but do you really want disinheritance to be your final word to them? Such a final word makes it very difficult for them to have second thoughts about the falling out, and perhaps realize their mistakes. It’s my belief that a human life is ultimately more valuable than even the largest inheritance.
Always Include a No Contest Clause
I recommend that your Will include a no contest clause, regardless of your situation and regardless of whether you suspect your Will may be challenged. The future is unknown, and this clause states that if someone challenges your Will, they are either disinherited entirely or receive a smaller inheritance. It’s not a perfect solution, but it will make them think twice before trying to overturn your Will.
Work with an Experienced Estate Planning Attorney
Another common reason that someone might challenge your estate plan is that it was not executed properly. For example, if you don’t have your Will signed in front of at least two witnesses, it can be more easily challenged. In addition, if any of your estate planning documents use unclear wording it will be easier for someone to challenge it down the road.
This is why you need to make sure that you are working with an experienced estate planning attorney who will make sure that everything is done correctly. Contact High Point Law Offices to schedule a consultation and discuss your specific estate planning needs today.
