Avoiding a Will Contest
Even the most harmonious families are susceptible to arguments over the contents of the Will when a loved one dies. While sometimes there is no way around it, below are some tips for hedging your bets and avoiding a Will Contest (and claims against Trustees appointed in your Will):
- Talk to your beneficiaries about your decisions and reasons for making them before you die. While they may not always like the decisions you are making, at least this gives them time to understand those decisions and to ask questions before you pass.
- Include items of significance in your Will, even if there is nominal monetary value, to avoid conflict (e.g. your grandmother’s special ring, watch, etc.).
- Include personal property items that have significant value (e.g. one of a kind painting, father’s Rolex, mother’s 5 carat diamond engagement ring) specifically in your Will.
- Appoint an unrelated third-party as trustee for your surviving spouse’s trust if you have children from a previous relationship and intend for the surviving spouse’s remaining trust funds to go to your children after your surviving spouse dies.
- Do not appoint your new spouse to act as trustee for your children from a previous relationship – even if they have a great relationship.
- Document lifetime gifts and lifetime loans to family and friends in writing and make sure your beneficiaries understand which is a gift and which is a loan. Gifts aren’t expected to be repaid – loans are a debt owed to the estate if they are not repaid prior to death. When documenting gifts also consider whether that lifetime gift should be charged against any testamentary gift to the same person and document the same in your Will.
- If you are disinheriting someone who would naturally inherit (e.g. a child or spouse), document in detail why you are disinheriting them in your Will and do not leave them a nominal gift (e.g. $5.00 to my son, Harry, who never visits me). By leaving a nominal gift, the Independent Executor is required to provide the person you are disinheriting with notice that the Will has been probated.
- Engage an experienced estate planning attorney to draft your Will and advise them of the potential issues.