If you have executed a Last Will and Testament, you are undoubtedly counting on the terms of that Will being followed during the probate of your estate. After all, a primary motivation for creating a Will is the ability to dictate how your estate assets will be distributed when your are gone. If someone successfully challenges your Will, however, your wishes will not be honored and your estate will be distributed using the state’s intestate succession laws. A probate attorney at Nash Bean Ford & Brown, LLP discusses how careful estate planning can help prevent the possibility of a Will contest.
How Does a Will Contest Work?
If you have never been directly involved in the probate of an estate, it helps to start with a brief explanation of that process. 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. 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, 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.
Preventing a Will Contest through Estate Planning
Although there is no way to guarantee that your Will won’t be contested, there are some estate planning tools and strategies that can decrease that likelihood, including:
- Work with a professional. The DIY rout can seem like a way to save time and money considering how easy it is to find DIY legal forms on the internet. Those forms, however, greatly increase the odds of a challenge, instead of preventing one, because they are so often riddled with errors and omissions. 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. This can be important if someone does contest your Will on the grounds that you lacked “testamentary capacity” at the time you executed the Will.
- Incorporate probate avoidance strategies into your estate plan. You can incorporate probate avoidance tools and strategies into your estate plan which, in turn, decrease the likelihood of a Will contest. Assets that are gifted in your Will must go through probate, subjecting them to the possibility of a Will contest. Non-probate assets though 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.
- Get a complete physical just before you execute your Will. Schedule a complete physical just prior to executing your Will to provide evidence of your state of mind, should it be needed down the road. Claiming that the Testator lacked “testamentary capacity” is a common basis for a Will contest. Having a complete physical done right before signing your Will creates an excellent record of your physical and mental capacity.
- Execute your Will in front of witnesses. Most attorneys have staff members witness Wills because they can usually be located later if needed to testify to the Testator’s state of mind and stated wishes at the time of execution.
- Create a Letter of Instruction. This is simply a letter that is written by you explaining anything not already covered elsewhere in your estate plan. 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. Illinois law has historically been somewhat vague on how no contest clauses are viewed. A no contest clause will usually be enforced; however, they are strictly construed with any ambiguity being interpreted in favor of the beneficiary. In addition, like many states, Illinois may recognize a “good faith” exception that will not enforce a no contest clause if the contestant has a legitimate “good faith’ reason for challenging the Will.
Contact a Probate Attorney
For additional information, please join us for an upcoming FREE seminar. If you have additional questions about preventing a Will contest through estate planning, contact an experienced probate attorney at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your appointment today.