For most people, a Last Will and Testament serves as the foundation of their estate plan. It is typically the first estate planning document to be created and may be the only document within an estate plan for many years. One of the primary reasons for executing a Will is to ensure that your estate assets are distributed pursuant to your wishes when you are gone. A Will contest, however, could threaten those wishes. The Glastonbury estate planning attorneys at Nirenstein, Horowitz & Associates, P.C. explain what you can do to make it less likely that someone will pursue a Will contest after you are gone.
What Is a Will Contest?
Authenticating the decedent’s Last Will and Testament is one of several important functions served by the probate process. Your Executor submits an original copy of your Will to the appropriate court to open probate. If no one challenges the validity of the Will submitted to the court, the probate process will continue unhindered. 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 your estate unless there is another valid Will presented to the court. If the contestant is unsuccessful, the probate process resumes, using the terms of your Will to guide the distribution of your estate assets.
What Can I Do to Reduce the Likelihood of Someone Contesting My Will?
While there is no way to definitively prevent a challenge to your Will, there are a number of things you can do to greatly reduce the likelihood of a Will contest after you are gone, including:
- Do not go the DIY route. Instead, work with an experienced estate planning attorney during the creation of your Will. Given the prevalence of fill-in-the-blank legal forms that can be easily found on the internet, it can be tempting to go the DIY route when creating your Will. DIY legal documents, however, greatly increase the odds of a challenge because they are rife with ambiguities and errors. In addition, by consulting with an estate planning attorney when you create your Will you have yet another disinterested witness who spent considerable time with you around the time you executed your Will and who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
- Avoid probate altogether. While you may not be able to completely avoid probate, you can incorporate probate avoidance tools and strategies into your estate plan which, in turn, decreases 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 check-up. 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.
- Provide witnesses. Execute your Will in front of two disinterested 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. State laws vary with regard to how they approach no contest clauses. Connecticut does enforce no contest clauses; however, like many states, there is a “good faith” exception that will invalidate the clause if a contest is brought “in good faith, and upon probable cause and reasonable justification.”
Contact Glastonbury Estate Planning Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding how to prevent a Will contest, or you wish to get started creating your Last Will and Testament, contact the experienced Glastonbury estate planning attorneys at Nirenstein, Horowitz & Associates, P.C. by calling (860) 548-1000 to schedule an appointment.