Your estate plan is your opportunity to put down in writing what you wish to happen to your estate assets after you are gone. For most people, one of the strongest motivations for having an estate plan in place is to ensure that those wishes are honored. Unfortunately, the law does allow certain people to challenge the Last Will and Testament that you execute. Because a Will contest is only initiated after your death, you cannot defend your Will if one is filed. You can, however, take steps now to reduce the likelihood of a dispute. The probate lawyers at Nash, Nash, Bean & Ford, LLP offer tips to help prevent a dispute over your estate.
What Is Probate?
The estate you leave behind after your death will consist of everything you owned, or in which you had an ownership interest, at the time of your death. Ultimately, all of those estate assets need to be transferred to the intended beneficiaries and/or legal heirs of the estate. Before that can happen, however, your estate must go through the legal process known as probate. During probate, your estate assets are identified, secured, and valued. Creditors are notified and valid claims paid, including any taxes owed to Uncle Sam. Probate is also when any challenges to the validity of your Last Will and Testament will be litigated.
Preventing Disputes – How Planning Now Can Pay Off Later
When disputes erupt during the probate of an estate, it typically increased both the cost of probating the estate and the length of time required to conclude the probate process. Consequently, a dispute could mean a decrease in the value of the estate passed down to your loved ones and a much longer wait before they receive the assets that are passed down. To prevent such unwanted results, the following tips may help reduce the likelihood of a dispute during the probate of your estate:
- Work with an experienced estate planning attorney. It may seem like using fill-in-the-blank online estate planning forms is a good way to save money; however, in the long run the DIY route dramatically increases the likelihood of litigation when it comes time to probate your estate. Generic DIY forms are often out of date, lacking in instructions, fail to completely distribute your estate, and do not take into account state specific requirements. Working with an experienced estate planning attorney ensures that everything is done correctly and offers the best defense against disputes.
- Take the time to consider your choice of Executor. All too often the creator of the Will, known as the Testator, appoints a spouse, family member, or close friend as Executor without stopping to think if that person is really the best person for the job. The wrong Executor encourages challenges whereas the right Executor will deter those same challenges. Choose someone who will be able to handle the job while still grieving and who has some legal experience, if possible.
- Consider including a no-contest clause in your Will. A no-contest clause effectively penalizes a beneficiary for contesting your Will. For a no-contest clause to be effective the beneficiary must be awarded something in your Will that he/she stands to lose by pursuing a Will contest. Illinois does recognize and will enforce a properly drafted no contest clause.
- Use a Letter of Instruction to explain controversial decisions. You have an absolute right to distribute your estate anyway you see fit; however, if you completely disinherit a child or give your entire estate to charity, for example, you can almost count on challenges by loved ones as they have nothing to lose. If you know that decisions you made in your Will are likely to be unpopular or raise questions, explain those choices. You can do this prior to your death by sitting down and talking directly to your loved ones or you can use write a letters or letters explaining your reasons why you make your choices and include it with your Will. This letter can be extremely beneficial if litigation is brought after your death.
- Help your Executor prove your testamentary capacity. Contrary to popular belief, a Will contest cannot be founded on an heir being unhappy about his/her inheritance (or lack thereof). To contest a file a contestant must allege (and ultimately prove to be successful) that the Will is legally invalid. The most common grounds on which a Will can be challenged are to claim that the Testator lacked testamentary capacity or to claim undue influence. To discourage these claims, have a full mental examination conducted by a geriatric psychiatrist or other qualified medical professional done shortly before or after executing your Will. Meet with your estate planning lawyer, by yourself, to discuss your wishes. Execute your Will in front of your attorney and at least two disinterested witnesses. In some circumstances, it is a good idea to meet with a second estate planning attorney to have him review your Will, discuss your wishes with you, and prepare a written statement regarding your state of mind.
Contact Moline Probate Lawyers
For additional information, please join us for an upcoming FREE seminar. If you have questions or concerns regarding how to prevent a probate dispute over your estate, contact the experienced probate lawyers at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.