That’s all the more reason to use an experienced estate planning attorney to help you create your estate plan. It’s the common mistakes that cause the most trouble, especially when a person tries to save money and do it themselves. If you work with an attorney who focuses on wills and estates in your state, he or she will know when a law changes—and how it can impact your plans and objectives for your legacy.
The time to think about a possible will contest or challenge is in the initial planning process. If you and your attorney discuss your concerns from the start, he or she can plan around them and design tactics that can avoid or reduce the chances of a will contest.
It’s much simpler to tackle a problem now than to try to solve it later after you’re not around. When working with your lawyer, the more information you offer, the more likely the problem can be addressed and avoided.
For example, if you are considering favoring a daughter who has taken care of you for many years but there is a concern that the other children will be upset, discuss this with your estate planning attorney.
Your attorney may ask you to get a letter from your physician. That letter should confirm that, that in his or her medical opinion, you’re of sound mind and have the capacity to make your own decisions. Capacity is a common challenge to a will. A begrudged heir may claim you were not mentally capable of signing a will.
Your attorney may also record the will signing, so there’s evidence that you weren't under another person’s influence or pressured into signing the will. Don’t be surprised if your attorney asks that the caregiving child isn’t at the signing, to lessen the concern of undue influence.
Some folks will leave a person they intend to disinherit a dollar. That won't do anything, except cost your estate a dollar. Just because you left them a dollar, doesn't mean they can't challenge the will.
Some people also want to have a term in the will stating that anyone who challenges the will is disinherited. However, that is not a 100% lock. This provision, known as an in terrorem clause, is unenforceable in many states. We've had some fairly wishy-washy decisions from our high court here in Virginia for example.
Speak with an experienced estate planning attorney and plan for the challenge. Odds are it will never arise. However, if it does, by taking these steps, your family will be ready and your wishes will be honored.
Reference: The Northwest Indiana Times (September 3, 2017) “Choosing an executor”