You planned your estate. You documented your wishes. There’s no reason for a contest to your will or trust should derail your final wishes—or worse, rapidly deplete your estate and tear your loved ones apart. Here’s how you can prevent a disastrous will or trust contest.
What is a will or trust contest?
A will or trust contest is a lawsuit that is filed to object to the validity of a will or trust. If a will or trust is successfully contested (i.e. declared invalid), then the court “throws out” the will or trust—leaving your loved ones without the clarity and protection it was meant to give them.
Who can contest a will or trust?
Only a person who will be personally affected by the outcome of the case can file a lawsuit. This includes:
- Disinherited or disadvantaged heirs at law: Family members who would have inherited more under applicable state law if you had failed to make a valid will or trust at all
- Disinherited or disadvantaged beneficiaries: Beneficiaries who would have received more under a previous version of your will or trust
When can a will or trust contest be filed?
The time limit and procedures for contesting a will is determined by the law and rules of the state in which the probate case is filed. With regard to trusts, the time frame and procedures to contest them also varies greatly from state to state.
It is important to understand the time limits that an interested party has to file a will or trust contest, since in many states, missing the deadline will completely bar the party from filing one.
What are the legal grounds for contesting a will or trust?
In general, there are four grounds to challenge the validity of your will or trust:
- The will or trust was not signed as required by state law. Each state has certain standards, such as requiring that wills not entirely in your handwriting must be signed in the presence of two witnesses who meet certain requirements.
- The person making the will or trust lacked the necessary capacity. The capacity to make a will means that the person understands their assets, their family relationships, and the legal effect of signing a will or trust. In layman’s terms, this means you must prove sufficient mental capacity to sign a will or trust.
- The person making the will or trust was unduly influenced into signing it. As people age, others may try to exert influence over decisions, including how to plan their estate. Undue influence means more than just nagging or verbal threats—it must be so extreme that it causes you to give in and change your estate plan to favor the undue influencer.
- The will or trust was procured by fraud. If you signed a will or trust thinking you are signing some other type of document, or a document with different provisions, that document has been procured by fraud.
How can you avoid a will or trust contest?
When you create or update your estate plan, one of your goals should be to ensure that your final wishes are fulfilled. If you are concerned about challenges to your estate plan, consider the following:
- Do not “do it yourself”! Only an experienced estate planning attorney will be able to help you create and maintain a plan that will discourage lawsuits—and Riverside Healthcare Foundation is happy to offer that assistance.
- Let your family members know about your estate plan. It is not necessary to let family members know about all of the intimate details of your estate plan if you do not wish to do so—but at the very least, please ensure they know that you took the time to create one.
- Use discretionary trusts for beneficiaries in complicated circumstances. If you worry that a beneficiary may use their inheritance against your wishes, you can require the beneficiary’s share be held in a lifetime discretionary trust and name a third party, such as a bank or trust company, as trustee.
- Keep your estate plan up to date. Estate planning is not a transaction—it is an ongoing process. Therefore, as circumstances change, so should your estate plan. An up-to-date plan shows that you took the time to review and revise the plan as your family and financial situations changed. This, in turn, will discourage challenges since your plan will clearly encompass your current estate planning goals.
The Bottom Line on Will and Trust Contests
Putting together an estate plan that is designed to head off challenges will go a long way to giving you and your loved ones peace of mind.
Are you looking to plan your legacy gifts or include Riverside Healthcare Foundation in your estate? Our estate planning experts at Riverside Healthcare Foundation are here to help you. Whether you need guidance on updating your estate plan or want to learn more about planned giving options, we have the knowledge and resources to assist you. Contact Ann Offermann at AOffermann@rhc.net or (815) 933-7799 to start planning today.