Anticipating and Preventing Will Contests

Anticipating and Preventing Will Contests

Will contests, though relatively rare, may happen for a number of reasons. There are several common signs that parties involved in an estate plan might engage in a contest.

If the situation involves the disinheritance of a close relative or spouse, unequal treatment of children in the will or unusual behavior on behalf of the testator indicating that the person may not have been mentally competent, a contest is likely. Whether or not you notice signs like these during the will drafting process, there are things that can be done to try to prevent a future contest.

Because some contests move forward on the grounds that the testator was mentally unstable at the time the will was drafted, you could seek a letter from a doctor verifying that you are in a sound mental state. It might also help to videotape the will’s execution ceremony, during which time you answer questions concerning you mental competence, although sometimes that raises questions in itself. Similarly, consider creating a list of credible witnesses — usually longtime friends — as a backup.

Avoiding transferring property under the will probably will not prevent some contests. Alternatives that include lifetime gifting and community property arrangements might help.  But establishing beneficiary designations, joint accounts and pay on death accounts can be challenged just as a will can.

Conflicts between fiduciaries and beneficiaries might also be reduced by appointing a neutral third party, such as a corporate fiduciary, to serve as the estate’s executor and trustee. This helps to deflect some of the animosity that can arise when family members are appointed to these positions.

If you have questions about this process, consult with a Tampa estate planning attorney today.