Challenges to wills and trusts are more common than you might think.
These disputes can turn very ugly, very quickly. Resentment between family members can last a lifetime, and the financial consequences can be devastating for all parties involved. Here are several ways to prevent potential disputes from arising in the first place, avoid estate litigation, and help ensure your wishes are carried out.
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Try to treat siblings as equally as possible
Granted, in some family situations this may seem easier said than done. However, the principle is sound and can help avoid a number of potential problems. If you have two children, leave each of them the same amount. However, the “equality principle” doesn’t just apply to money. There is also the issue of control. If one of your children seems better able to manage money and you name him or her as executor of the estate (or trustee of the trust), the other child will likely feel slighted. Naming a corporate executor or trustee can nip this thorny issue in the bud. Another potential problem is when inheritances are left to grandchildren, and one sibling has more grandchildren than the other. However,
if you follow the equality principle, many conflicts can be avoided.
Never underestimate the emotional value of certain family heirlooms and other tangible property
That vase in the foyer or old sofa in the living room might not seem valuable to you, but to certain members of your family it could hold special meaning and value. A statement in a will or trust that essentially says ‘tangible personal property should be divided as my heirs see fit’ can lead to a host of conflicts. By putting specific items that you believe are of interest to certain family members in writing, and discussing these decisions in advance, many emotionally charged disputes can be avoided.
If you gave money to one heir in the past, don’t forget about it your plan
Let’s say that several years ago you gave one of your sons $20,000 to help with the down payment on a home. Since your goal is to treat all of your children equally, you might want to address this gift in your will or trust. For example, it can be classified as an advancement, with the $20,000 counting as part of the money you ultimately leave to that particular son.
Consider putting a no contest clause in your will
If you suspect that one of your children, or his or her spouse, might make trouble over your will, a no contest clause can help avoid potential problems. In essence, this clause makes the risk of challenging your will outweigh the potential benefit of doing so.
A no contest clause typically stipulates that if a beneficiary contests the will’s validity its provisions, his or interest in the will is forfeited. Of course, you have to leave the heir in question enough of an inheritance to motivate him or her not to challenge the will.
Prove that you are of sound mind
This might sound “crazy,” but it’s not. Challenges to wills often involve allegations that the maker of the will (the testator) was not of sound mind when the will was signed. This tactic is particularly common when changes have been made to the will shortly before the testator’s death. You can help prevent this type of challenge by obtaining an evaluation from a treating physician and a psychiatrist right before you sign or make changes to your will.
If you are going to disinherit someone, make sure it is noted clearly in your will
Our children can and sometimes do disappoint us. Sadly, the level of disappointment may be so severe, the behavior so egregious, that the only solution seems to be disinheriting the son, daughter, or grandchild entirely. If you find yourself in this situation, make sure your decision is noted in your will. You don’t want to give a reason for your decision, as this could become the foundation for a potential lawsuit. However, you need to make it clear that your decision was intentional.
