New York Estate Planning & Elder Law Blog
Estate planning is not something that should be taken lightly, and understanding the gravity that comes with your estate planning decisions is an important part of creating a comprehensive estate plan. However, one of the most common problems with estate plans is that while they may accurately reflect your wishes, they don’t always reflect what your family thinks those wishes should be. That can leave them vulnerable to attack in court, which can cause unintended consequences for your assets. Aside from utilizing the services of an experienced estate planning attorney, there are some ways to avoid common issues that can give rise to litigation of an estate plan.
Pay Attention to Laws of Intestate Succession
Intestate succession laws help determine how a person’s assets are to be divided when they die if that person has no Will or their Will is found to be invalid. While you are certainly free to distribute your estate as you see fit, understanding the laws of intestate succession can help you distribute your estate in a way that will discourage Will contests because beneficiaries that stand to benefit little from having a Will invalidated will often think twice about doing so.
Select a Professional as Executor
Estate plans are intimate things. This intimacy often leads people to nominate close friends or even family members to be the executor of their estate. However, choosing someone that stands to benefit from your estate or a related trust can open the door to contesting it based on allegations of that person abusing their power. Further, there are some complicated processes that executors must oversee, and appointing a professional to the role of executor can help make sure your estate is administered fairly and accurately.
Include a No-Contest Clause
A no-contest clause can be an effective mechanism in preventing heirs from contesting your estate. Basically, the clause says that if an heir unsuccessfully challenges the provisions of your Will then they will be disinherited. Generally, only certain people will likely contest your Will so you don’t need to include a provision for everyone but you should be sure to apply the provision specifically instead of generally.
Explain Your Decisions
Trying to interpret someone’s intentions behind how they distribute their assets can be a difficult task since the only person that truly understands why they have made the choices in the Will is the deceased person. Take some time to discuss your estate plan with your heirs during your life so that you can explain some of the decisions you have made within it. This can help avoid surprises when your estate plan is administered.
Use Caution with Disinheritances
It is often very difficult to disinherit a spouse or a child, and you need to be explicit when you have made the choice to disinherit someone. Simply leaving them out of your will can allow them to contest the Will as can disinheriting them over things like their personal religious choices or using ambiguous terms to explain why you are disinheriting them.
Anticipate Challenges to Your Mental State
A popular reason for contesting an estate is that the person was not mentally competent to make decisions about their estate plan when the plan was created. Obtaining an evaluation of your mental state from a physician or psychiatrist dated close to when you finalize your estate plan can help preempt challenges to your mental state, as can ensuring the witnesses you choose to finalize your Will can testify to your mental state at the time of signing.