I’ll be making a will. Sooner rather than later. One of the beneficiary’s might be a problem. I’m not certain that anything will be contested. I’ve seen that the following are some of the reasons someone might use to contest my will. I just want any potential loopholes plugged before it happens.
Is there such a document that states something to the effect that, “If you accept this money, then you waive all options to contest this or any other part of this will.”? Or something to that effect.
What about a way to have legal and binding proof of my mental capacity at the time of me signing the will? How would that be done?
IANAL…you should consult with an attorney who does those.
IIRC a usual practice when making a will is having a couple witnesses who attest to your mental capacity/clarity/saneness (whatever they call it) and sign the will too.
Could you ask your doctor to write a letter affirming your mental capacity to write your will? And have the will witnessed in your lawyer’s office, in the presence of your executor? Can your doctor act as a witness to the will signing? Can you include a letter with your will, setting out the reasons for your decisions?
You can write anything in your will you want. But anyone can contest the will. Even if they took the money and promised not to contest the will they could still contest the will. That condition may make it more difficult for them to win (maybe) but it doesn’t stop them.
And, of course, if they mean to contest the will then they simply do not take the money and go to court.
That makes sense. No way around the first question though I guess. Don’t like idea of, ‘doesn’t matter what you write and they sign off on, they can do what they want anyway.’
SanVito, I don’t know the answers to any of your questions. I don’t want to jump through any more hoops than I have to, so I don’t know. I’ll see what an attorney says.
Fir_na_tine: I’ve googling Probate attorneys in my area
You should with a lawyer specifically barred to practice in the state in which the will is to be probated. States have wildly different laws about how and by whom a will can be contested, any exceptions you can put into the will to inhibit legitimate challenges, and what comprises evidence of the soundness of mind of the testator. If you are seriously concerned about challenges to the will that could hold up probate you may consider putting assets into a revokable trust instead of transferring them in a will, as the trust avoids probate and is only subject to the intent of the trustee rather than any legal challenges about the veracity of a will in probate.
Revocable trust. Hmm, I don’t know anything about them either. I think I can assume a probate attorney isn’t going to able to handle this then and that a revocable trust is going to cost a bunch more money?
A lot of attorneys who work on wills also work on trusts. They are somewhat interrelated areas of the law that often have overlapping concerns from a client. Often times a trust is utilized so survivors can have somewhat immediate access to assets, as it avoids probate–there are many uses for a trust beyond simply trying to head off a contested probate process. Note that there is essentially no way to make it impossible for someone to contest what happens to your assets when you die, that just isn’t a thing. Our legal system allows anyone to contest anything, even on very specious grounds. What a good attorney specialized in this area, in your State, can do is set it up so that the likelihood of that person succeeding is low, and the likelihood their attempt will not be sustained for long by the court system so that your survivors can get whatever you intend as quickly as possible. But the law and life are complicated, nothing is going to be guaranteed here.
There are many examples of literal billionaires, who we can presume have vast resources to hire amazing attorneys, have had their last wishes contest in court battles for years.
Edit to add: A trust can be contested just as a will can, it’s just a different process than probate. A trust can often be structurally more difficult for someone to contest but that’s only a broad rule with no specificity or guarantee to a specific state or specific situation.
Not really much more money than a non-boilerplate will:
The big issue with a revocable trust is that you have to appoint a trustee who will survive you and whom you trust (literally) to distribute the assets of the trust as you designate.
Well that’s a problem. I don’t have an executor and I need one. Now.
My will/trust isn’t going to be complicated at all, but my plans for it’s distribution might sort of upset one particular individual. This person is getting treated like everyone else in the document, but I don’t think that will matter. This person would likely be upset no matter what I did, but that’s another story.
Lawyers or bankers often fulfill this role. You pay them a fee and they will work on your behalf to see to the wishes you laid out in your will. They will have a legal obligation here so generally can be trusted.
Pretty much anyone can act as the executor; you can probably have your lawyer act as the executor for a nominal fee provided the will is simple, since all of the provisions for dispersement are in the will and anything that is challenged will be determined by the probate court in the execution of the will, after which the estate is dispersed. The trustee of a trust, however, has much greater latitude and basically no check on their authority to disperse assets as they see fit within the bounds of the trust statement, If the assets in trust are intended to be held after death (after which the trust converts to an irrevocable trust) and not immediately dispersed, the trust assets have to be managed and taxes and fees paid upon them as required by any owned assets, and that can be a significant amount of work even for a relatively value small trust. This motivates the trustee to disperse the assets and dissolve the trust as soon as possible.
Generally speaking, an even distribution of trust assets to surviving issue is the default for most probate courts. However, if there is a spouse, or if the estate of the deceased has outstanding debts, or there are other complicating issues it can hold up probate of the will in legal challenges. In some states children are assumed to be recipients in a will and can challenge if even if they are explicitly excluded; in other states non-minor children essentially have no claim on the estate. Most states protect the surviving spouse’s right to retain the primary residence and some proportion of the state regardless of the provisions of the will. Again, a probate lawyer can walk you through all of this in the state where your will is to be probated (presumably your state of residence).
Public lore is especially full of all sorts of “do this in your will” tricks:
If you disinherit someone, do so explicitly in your will. Otherwise they argue in court you forgot them.
state specifically relationships; so someone contesting can’t argue “you meant the other John Smith!”
There needs to be proper evidence there was no undue influence - that niece Sally who inherits it all didn’t browbeat you into writing out the other 5 nephews and nieces.
Handwritten wills are good. No, any will would work - a witnessed will is best; the witness should not be someone who is going to inherit.
Designate an executor. Be sure they are honest.
All of the advice is either good advice or rubbish - only a qualified lawyer in your jurisdiction can tell you for sure. Advice here is worth what you have paid for it. (Actually, worse. If you rely on non-professionals you may leave a mess which is not distributed anywhere near what you want…)
Particularly if you are concerned that competence or undue influence may be argued, a lawyer can tell you what evidence is relevant in your state.
Also note some jurisdictions may have laws about what you can and cannot do - for example, a surviving spouse must get X. Wording is important - if you say “evenly among my children” there’s a specific legal wording for “including a share to offspring of a decease child.”
Considering many people live into their 90’s and beyond, a lot can change between when the will is written and when it is executed. Be sure to update the will regularly if necessary. However, significant changes that favour one person a lot may be used as evidence of undue influence.
Estate issues can cause never ending headaches and tear families apart. If you are having these kinds of concerns about how your estate is handled, you really need to use an attorney to get your will done. If you try to do the will on your own, any mistakes or mis-statements will be cracks that disgruntled heirs will use to try to pry the assets away from the estate and to themselves.
In addition to working with an attorney, you can actually set up beneficiaries to many of your financial assets so that they don’t go through your estate and will avoid probate. This can be done at any time and has nothing to do with writing your will. Most bank and financial accounts will allow you to specify a number of beneficiaries to transfer the assets to after you die. Real estate can have a Transfer on Death Deed which does something similar. Upon your death, the deed transfers to the person you list. Setting up these sorts of beneficiaries for your assets can avoid a lot of headaches for your heirs since the assets are distributed directly by the financial institution to the beneficiary rather than going through your estate in probate and distributed by the executor. Most people with regular estates can distribute a great part of their assets through beneficiaries and their estate will consist mostly of the leftover, minor things like personal items, furniture, etc.
Nothing brings out the nasty and vicious buried sibling rivalries like a good inheritance fight. The only thing close in nastiness is a contested divorce.
Mix in a divorce and multiple families with an estate and the mess is quadrupled.
Wife and I are both lawyers and recently revisited our wills (after her dad died with an incredibly fucked up estate.) Is there a reason you aren’t talking to a lawyer? A simple will should only cost a few hundred $. Depending on your assets, a trust may or may not make sense - and will likely cost a similar amount to set up.
None of your beneficiaries is willing to act as executor? In addition to a will/trust, I advise clearly communicating your desires - and concerns - to your beneficiaries. At least the reasonable ones. They can decide how badly they want to contest the jerk’s efforts.
Bottomline, find an estate lawyer you feel you can trust, ask his advice, and take it. And leave it at that. Anyone can contest any will, causing headaches - and possible expense - to others involved. But you’ll be dead by then, and will have been able to end your days knowing you gave reasonable effort.
