I. Introduction
One of the downsides of passing your property through your will is that the probate process can be tied up in litigation. Anyone who followed the Anna Nicole Smith case (following death of billionaire husband J. Howard Marshall) knows that this probate litigation can be a long drawn out process.
Even if you don’t leave behind an estate quite as big as Mr. Marshall’s, you likely want to avoid having your heirs battle over their inheritances for months or even years after your death. Thankfully, will challenges can be avoided with a little pre-planning.
II. “No Contest” Clause
The most straight forward provision you could add to your will to prevent a challenge is the “no contest” clause. This is a provision that expresses the testator’s desire that no one challenge the will. Typically, the way this clause works is that if anyone does choose to challenge the will, they will be barred from their inheritance.
For example, D has his lawyer draft a will with a no contest clause. Years later, D dies and leaves A and B everything in his will, 1/3rd to A and 2/3rds to B. A thinks it is unfair that he received an unequal amount, so he files a “caveat” challenging the will. The Clerk of Court rules against A and finds the will to be the valid last will and testament of D. Because the will contained a no contest clause, A is no longer entitled to any share under the will
If a will contains a no contest clause, someone like “A” would likely not challenge the will—even if they think that it is unfair.
III. Talking to the Heirs
One of the reasons why wills are often challenged is because the heirs have been left out of the loop. They may be unaware of when the latest will was drafted, where the will is typically kept by the testator, and what the will says. To prevent the heirs from feeling slighted by the terms of the will, it is best to not surprise them.
Your immediate family should be aware of the location of where your will is kept, when and by whom the will was drafted, if there have been any updates to the will, and they should have some idea about what the will says. It may even be a good idea to have the drafting lawyer explain the will to the heirs after the will has been signed.
IV. Probate Avoidance
Lastly, the most effective way to avoid a challenge to the will is to pass your estate outside the will. Through the utilization of trusts, deeds, and beneficiary accounts, you can pass most to all of your property outside of your will. Such property passes immediately upon death and avoids the probate process altogether. Thus, there is nothing for anyone to challenge.
V. Conclusion
If you are concerned about a challenge to your will, there are many preventative solutions. Speak to an attorney today to find out the best option for you.
Regards,
Greg McIntyre
Elder Law Attorney
McIntyre Elder Law
“We help seniors maintain their lifestyle and preserve their legacies.”
www.mcelderlaw.com
Phone: 704-259-7040
Fax: 866-908-1278
PO Box 165
Shelby, NC 28151-0165
