One of the primary reasons for executing a Last Will and Testament is to ensure that your estate assets are distributed according to your wishes after your death. If someone chooses to challenge that Will, however, the ensuing litigation could result in your Will being declared invalid and your estate distributed using the California intestate succession laws. The Los Angeles estate planning attorneys at Collins Law Group offer tips on how to prevent a Will contest.
What Is a Will Contest?
The individual you appointed as the Executor of your estate will initiate the legal process known as probate shortly after your death. Authenticating the decedent’s Last Will and Testament is one of several important functions served by the probate process. Toward that end, your Executor must submit an original copy of your Will to the appropriate court along with a petition 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.
Tips to Reduce the Likelihood of a Will Contest
Unfortunately, there is no way to absolutely guarantee that your Will makes it through the probate process without a challenge; however, there are a number of things you can do now that will greatly reduce the likelihood of a Will contest after you are gone, including:
- 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 a challenge is filed based on lack of testamentary capacity.
- Incorporate probate avoidance tools and strategies into your estate plan. Assets that are gifted in your Will must go through probate, subjecting them to the possibility of a Will contest. Non-probate assets 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.
- Schedule a complete physical just prior to executing your Will. 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.
- 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.
- Make use of a Letter of Instruction in your estate plan. 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 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. Until recently, California law regarding no-contest clauses was fairly convoluted and not easy to interpret. Changes to the old laws have made no-contest clauses even harder to enforce in the state; however, your estate planning attorney can work with you to create an enforceable clause if you wish to include one.
Contact Collins Law Group
For more information, please join us for an upcoming FREE webinar. If you have additional questions about preventing a Will contest, contact an experienced Los Angeles Estate planning attorney. Contact the Collins Law Group by calling (310) 677-9787 to register for one of our FREE estate planning workshops.
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