How to Protect Your Estate Plan from Attack

One of the worst things that can happen in estate planning is an attack on the validity of a will or trust. This is called a contest and it can interfere with your final wishes, deplete your estate assets, and worst of all, destroy your family. The reasons a will or a trust might be contested are:

  1. The will or trust was not executed in accordance with the law.

  2. The person signing the will or the trust lacked sufficient mental capacity to understand the document.

  3. Someone exerted undue influence over the person signing the will or trust.

  4. The will or trust was obtained through fraud.

While the standard is high to actually invalidate a will or trust, that does not mean the fight will be easy or inexpensive. While no strategy is fool proof, here are some suggestions to protect your estate plan from attack:

  1. Do not do it yourself. Unless you take the time to understand the legal ramifications of the decisions you are making legal documents are a very dangerous place to DIY.

  2. Let your family know about your plan in advance. I find that even if children are not happy with Mom and Dad’s plan, if they were included in the process they are more likely to live with it.

  3. Consider a Trust. A Will by definition must go through a court process known as probate. With a trust, a disgruntled individual will need to file the lawsuit to raise their objections. If your estate is already in probate there is no need to file the lawsuit, they only need to raise their objection during that probate process.

  4. Include a no contest provision in your will or trust. This will create a disincentive to those who think they are entitled to more than they received. If they contest and lose, they lose everything.

  5. Keep your estate plan up to date. Estate planning is a process – not a transaction. Your circumstance will change and your plan needs to keep up. Failure to do so will set the table for a fight.

Family harmony is often a paramount goal of individuals in planning. Don’t make decisions that will make a contest of your will or trust more likely. Take these steps and help protect your estate plan from attack.