Bulletproofing Your Will Before Death
Estate planning is all about looking ahead to a time you’ll never see, doing what you can now to ensure a comfortable life for your heirs after you’re gone. But that doesn’t mean everyone will be thrilled about the decisions you’ve made, and sometimes even seemingly minor disagreements escalate into full-fledged battles over assets or heirlooms. A dispute could even end up in court—hardly the legacy you want to leave. But there are steps you can take to head off trouble.
Although there are no reliable statistics about just how frequently it happens, beneficiaries—or would be-beneficiaries—often challenge the provisions of wills and trusts. It doesn’t matter that an experienced attorney prepared the documents, or that the language seemed clear. Without you to clarify your intentions, they could be open to interpretation, and heirs may contest a will if they believe one of four conditions applies. They could contend that you were incapacitated when you made the will; that you were under duress; that you were unduly influenced by one or more people; or that you, or the preparer you hired, didn’t follow proper procedures.
To avoid disputes, a will or trust may include a “no-contest clause,” but these provisions have their own loopholes. They’re not enforceable in some states, including Florida, and in other states, such a clause may be set aside if the person contesting the will can demonstrate a “reasonable belief” that the document is invalid. In some cases, those who would challenge a will’s provisions may have to be compensated for agreeing to forego a claim.
To avoid such unwanted scenarios, Arkansas, North Dakota, and Ohio allow the “testator”—the person making the will—to have its validity verified in court while alive, thus avoiding the probate process after death. In those states, you could take your will to a probate court and verify that its provisions are exactly what you intended. Then family members may have a specified time in which to mount a challenge—but even if that happens, you’ll be there to defend the will. Similarly, Delaware permits people who establish trusts to “pre-validate” them as well. And now Alaska, known for its progressive estate and trust laws, has been added to the short list of states allowing pre-validation of wills and trusts. In Alaska, unlike in other states, even non-residents can attempt to bulletproof a will or trust.
Because some of these laws are new, it’s not clear whether they’ll have the intended effect of limiting estate planning squabbles. But if you’re concerned that your will could one day be challenged, consult your attorney now to see what you might do to keep that from happening.
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