You may look at estate planning as a one-way street. The decision-making is up to you, and you record your choices in a will or trust.
This is certainly a large part of the equation, but the recipients are also part of the loop. If you leave a child out of your plan, or if you slight them, an estate challenge could be presented.
A contested situation can cause a great deal of acrimony, and it will slow down the estate administration process. The entire family will suffer to one extent or another, but you can make a challenge less likely if you take the right steps in advance.
Take Some Kind of Action
Surveys that are conducted to measure the estate planning preparedness of American adults consistently find that the vast majority of people do not have plans in place. However, most of these individuals know that estate planning is important, so procrastination is the culprit.
If you pass away without any estate planning documents at all, the probate court would be forced to sort everything out. There would be no proof of your true intentions, so interested parties could come forward claiming to be rightful inheritors.
Ultimately, the court would make determinations based on the facts that are presented, but the situation would be time-consuming and contentious. You can nip this type of thing in the bud if you put the procrastination behind you and take care of this responsibility.
Provide a Disincentive
When you are creating a will or a trust, you can choose to include an in terrorem or no-contest clause. If you take this step, anyone that is named in the will as an inheritor that contests the terms of the document would lose their inheritance.
While it is certainly possible to go forward anyway and take your chances, most people would weigh the risk/reward equation and opt for the more prudent course of action.
Use a Living Trust Instead of a Will
An intestate estate goes to probate as we have stated, but a will is also admitted to probate. The situation is not completely muddled like an intestacy case, but there is another looming threat.
During probate, there is a proving of the will. The court is required to examine the will to make sure that it has been properly executed. If someone wants to come forward to challenge the terms, they have an open window of opportunity while the estate is being probated by the court.
When a living trust is utilized as the primary asset transfer vehicle, the trustee can administer the estate outside of probate. There is no court involvement, so the built-in forum for a challenge is not present.
Another advantage is the fact that the estate will be administered in a confidential manner. Probate is a public proceeding, so anyone that is interested can access the records to pry into the details, and this information can lead to unrest among people that were close to the decedent.
Schedule Regular Estate Plan Reviews
Once you have a plan in place, you should get together with your estate planning attorney to review your existing plan every year, or every couple of years. On a purely practical level, life changes can necessitate updates, and laws that are related to estate planning can change.
When it comes to estate challenges, if it is clear that your plan was reviewed and updated on an ongoing basis, any claims that your plan did not reflect your true wishes would be hollow.
Attend a Free Seminar!
Our attorneys are conducting a series of seminars over the coming weeks that can help you gain a more thorough understanding of this important process. There is no charge, but we ask that you register in advance so we can reserve your spot.
You can see the dates if you visit our New Haven/Hartford estate planning seminar page, and when you identify the session you would like to attend, follow the instructions to register.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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