How to Avoid Challenges to Your Will or Trust

Creating a solid estate plan is one of the most responsible steps you can take for your family's future. But even the best wills and trusts can spark conflicts among beneficiaries, leading to emotional strain and expensive legal battles. Fortunately, with some proactive strategies, you can minimize the risk of disputes and ensure your estate plan accomplishes your goals. Here are six effective approaches to protect your legacy.

1. Treat Your Children Equally – But Thoughtfully

When it comes to dividing assets among your children, emotions can run high. Parents are sometimes tempted to distribute assets unevenly due to different relationships or financial circumstances. However, equal division often prevents future tension among your kids. Here are a few options:

• Equal Division: Splitting assets equally can minimize the perception of favoritism. If one child receives significantly more than another, resentment could fester.

• Trusts for Children with Concerns: If one child has trouble managing money, you can set up a trust to control their portion without giving them unrestricted access.

• Delegating Based on Skill: If one child is better suited to manage the estate, consider appointing them as executor or trustee. Alternatively, opt for a corporate executor to avoid family friction altogether.

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Example: Jane, a widow with three children, left her estate equally divided among them. However, for her son, Tim, who had a history of overspending, she created a trust to distribute his inheritance over time. This prevented Tim from blowing through the money while ensuring he was still treated fairly.

2. Be Specific with Personal Property

Heirlooms and sentimental items are often the source of the most heated family disputes. While it may seem like a minor issue, failing to clearly designate who gets what can lead to emotional fallout.

• Have Conversations: Discuss the significance of certain items with your family while you're alive to ensure everyone understands their value.

• Be Clear in Your Will: Avoid vague instructions like "divide equally" when it comes to personal property. If Aunt Mary's vintage clock or Dad’s signed baseball is important, specifically name who will inherit it.

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Example: In one case, a grandfather left behind a cherished classic car. The vague wording in his will — "divide my personal belongings equally" — left his two grandsons fighting over the vehicle for years. Had he specified the car’s recipient, the dispute could have been avoided.

3. Account for Lifetime Gifts

If you've given significant gifts to any of your heirs during your lifetime, it's important to consider how these gifts affect the distribution of your estate. Failing to account for them could create an unfair advantage.

• Document Gifts: Keep a record of major gifts and classify them as advancements against the beneficiary’s inheritance.

• Adjust Residuary Shares: For example, if you gave your daughter $5,000 toward her student loans, you could adjust her inheritance by specifying, "less $5,000 gifted for student loans."

  
  

Example: Mary gave her son $50,000 to help him start his business, while her other children received no financial help. In her will, Mary specified that the $50,000 should be considered part of her son's inheritance, ensuring the division remained fair among all the siblings.

4. Use a No-Contest Clause

To prevent beneficiaries from challenging your estate plan in court, consider adding a no-contest clause. This legal provision threatens to disinherit any beneficiary who unsuccessfully contests the will.

• Deterrence: This tool is particularly useful for deterring family members who are prone to conflict or who might feel entitled to a bigger share of the estate.

Example: A father, anticipating a dispute between his children, included a no-contest clause in his will. This clause discouraged his oldest son from filing a lawsuit when the will didn’t leave him the amount he had hoped for.

5. Establish Competence

One common way to challenge a will is by claiming the testator (the person creating the will) was not of sound mind. To prevent this type of challenge, take steps to establish your competence at the time you create or revise your will.

• Medical Evaluations: Consider getting a medical evaluation to document your mental capacity.

• Competency Statements: Including a competency statement in your will can provide further assurance.

• Use Witnesses: Have reliable witnesses present during the signing of your will.

  
  

Example: An elderly woman added a new provision to her will, giving a significant portion of her estate to her caretaker. When her children contested the will, the caretaker was able to provide medical records and witness statements confirming the woman’s mental clarity when making the change.

6. Be Clear About Disinheritance

Disinheriting someone is a sensitive topic, and if you choose to do so, it’s crucial to state your intentions clearly. Leaving any ambiguity in your will can invite challenges from the disinherited person.

• Explicit Language: Include clear, specific language about your decision to disinherit someone, leaving no room for misinterpretation.

Example: Rodney had a strained relationship with one of his children and decided to leave them nothing in his will. By explicitly stating that the child was to receive no part of his estate, he avoided any potential confusion or legal challenge after his passing.

Let’s Protect Your Legacy

Estate planning is a highly personal process, and every family’s situation is unique. By implementing these strategies, you can avoid common estate planning pitfalls and ensure that your wishes are respected.

Do you need help navigating the complexities of estate planning? Attorney Leslie Sultan is here to provide expert guidance and tailor a plan that reflects your goals. Contact us today to secure your family’s future.

About the Author

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).