“Can I Prevent Someone from Contesting My Will?” by Attorney Alexander Pagnotta (Audio)
For most people, a primary motivation for creating a Last Will and Testament is to ensure that their estate assets are distributed according to their wishes after they are gone. If that Will is invalidated, however, the State of Maryland ultimately decides what happens to your assets. Knowing that it seems wise to do what you can to prevent challenges to your Will. Toward that end, a Bowie estate planning attorney at Sinclair Prosser Gasior discusses tools and strategies to help prevent a Will contest.
What Does It Mean to Contest a Will?
Your estate will likely go through the legal process known as “probate” after your death. Ultimately, probate results in the distribution of a decedent’s estate assets; however, another function of the probate process is litigating any challenges to the decedent’s Will. If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets. After going through the process of executing a Will, no one wants the terms of that Will to effectively be ignored after they are gone.
How Can a Will Be Successfully Contested?
Contrary to what many people believe, a Will cannot be challenged based solely on the fact that a beneficiary is not happy with the inheritance they received (or did not receive) according to the terms of the Will. To succeed in a Will contest in the State of Maryland, a contestant must prove at least one of the following legal grounds on which the Will can be declared invalid:
- Mental impairment (lack of testamentary capacity)
- Undue influence
- Fraud or forgery
- Improper execution
Tools and Strategies to Help Prevent a Will Contest
You cannot guarantee that no one will contest your Will; however, there are a few things you can do that will make a successful Will contest less likely, such as:
- Do not use a DIY Will form. The DIY route may sound like a great way to save time and money when creating your Will; however, DIY legal documents are typically riddled with ambiguities and errors, making litigation more likely down the road. Working with an experienced attorney gives you the benefit of professional advice and oversight as well as providing another disinterested witness who can testify to your state of mind in the event that “lack of testamentary capacity” is alleged in a Will contest.
- Convert assets to non-probate assets. Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Get a checkup just prior to executing your Will. “Lack of testamentary capacity” is a common basis for a Will contest. A good tactic for heading off such a claim is to get a complete physical done within days of executing your Will.
- Leave behind a Letter of Instruction. This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary regarding how they approach no contest clauses.
Contact the Bowie Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about preventing a Will contest, contact the experienced Bowie estate planning attorneys at Sinclair Prosser Gasior by calling (410) 573-4818 to schedule an appointment.
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