By: Martin M. Shenkman, CPA, MBA, JD
Avoiding a Will Challenge
Money Matters Radio – Estate Planning Q&A with Gary Goldberg
By: Martin M. Shenkman, Esq.
Introduction/Overview: No one wants their children or other heirs to fight. A lawsuit by an heir, challenging the validity of your will, resulting in an ugly and costly fight, is one of the worst tragedies to befall a family. What steps can you take to minimize the likelihood of a will challenge?
√ Question: What is the single most important step to take?
√ Answer: Hire a lawyer that specializes in estate planning to prepare your will and supervise the signing of it. Don’t do it online; don’t hire an attorney that does house closings. Get a specialist, and heed the advice they give you. The formalities of supervising a will signing are strict, and if you don’t address it properly, the will won’t withstand a challenge.
√ Question: Is it only about the will?
√ Answer: No, but unfortunately that’s what most people think. Considering that IRAs, life insurance, and so many other assets pass outside your will, addressing a will alone is not enough. You really need a comprehensive plan that deals with how beneficiary designations, account titles, and other things all interrelate with what is in your will. It all needs to be coordinated.
√ Question: What is another often overlooked issue?
√ Answer: Powers of attorney. You can have the best and most iron clad will, but if someone is named agent under your power of attorney, they can wreak havoc before you die by dissipating your assets. So you really need precautions on all fronts.
√ Question: What is one of the most common basis on which a will is challenged?
√ Answer: Undue influence. Someone in a position of confidence, had an incentive to sway you to favor them in your will or estate plan. There are too many cases of a home health aid, an over solicitous child, or other relative, taking advantage of an infirm or elderly testator. An experienced estate planner will often look for signs of an unnatural dispositive scheme (leaving everything to one child and not another) and determine if additional precautions are necessary.
√ Question: What if someone intends to disinherit a child or other heir?
√ Answer: That is a tough and tragic decision and should only be made for well-thought-out reasons, not in an emotional state. The attorney may determine that their will should expressly state that they have intentionally omitted that particular heir.
√ Question: What if you anticipate a will challenge?
√ Answer: Go back to your attorney and make some changes in your will and sign it again with a different set of witnesses. If you make changes it shows you have revisited your will and re-thought it, but if the main dispositive scheme remains, this might be a way to reinforce that plan. Every situation is different, use the help of a local attorney specializing in estate planning to determine which steps should, and, just as importantly, should not be taken.
√ Question: Any steps that are, perhaps, best to avoid?
√ Answer: Don’t jump at videotaping unless your attorney explains why it is really advantageous. Too often it proves the opposite by undermining the will. Another mistake to avoid, unless your attorney has a specific reason, is to not use your will as a means of documenting criticisms, reasons you hate a particular beneficiary, etc. Ugliness and nastiness are rarely appropriate.
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