Emotions run high after the loss of a loved one. A family member may feel slighted by the inheritance they receive (or don’t receive) through a Last Will and Testament. Some family members may even want to fight or appeal what is in the will. These disputes can last for years, even decades, and prevent other beneficiaries from receiving the inheritances you wished for them. While you cannot guarantee your estate will be settled dispute-free, there are steps you can take to avoid a will contest.
What is a Will Contest?
A will contest challenges the validity of your Last Will and Testament. To contest a will, the petitioner must be an interested party – someone who would inherit without a will or was going to receive a portion of the estate under a prior will. An interested party cannot contest a will if they are simply unhappy with the way the testator divided their assets. The interested party must file a complaint based on one or more of the following claims:
- Improperly executed or legally invalid will
- Undue influence from a beneficiary
- Commitment of fraud
- Lack of necessary mental capacity when testator signed the will
Strategies to Prevent a Will Contest
- Explain your reasoning. Most will contests are the result of a beneficiary feeling cheated out of an inheritance to which they feel entitled. Including an explanatory letter in your will gives you the opportunity to clarify any inheritance discrepancies between beneficiaries or why you chose to leave someone out of the will.
- Ensure your will is legally valid. The “do-it-yourself” estate plan has become more popular in recent years. Having a qualified estate planning lawyer write or review your will ensures it is a properly executed legal document and can protect it against claims of its validity.
- Avoid the appearance of undue influence. Write your will independently, without influence from family members or other beneficiaries. Avoid bringing family members with you, particularly if a family member is in a position that can be perceived by others as a position of power, such as a caregiver.
- Prove competency. It’s best to write your wishes down in a legally valid will when it’s clear you’re of sound mind. You can always revisit your will at a later date if you want to make any changes. You can take the extra step of proving competency by undergoing a mental competency assessment from your lawyer or a physician.
- Include a no-contest clause. A no-contest clause is a provision that can act as a deterrent for potential will contests. This clause typically states that if a person were to challenge the will and lose, they are disinherited entirely. Bear in mind this clause is not allowable in every state and may not be enforceable. Consult with your estate planning attorney before including a no-contest clause in your will.
Avoiding a contested will involves smart planning and communicating your rationale clearly. Contact a Fifth Third Bank financial advisor to get started with your estate plan today.
Fifth Third Bank does not provide tax or legal advice. Please consult your tax adviser or attorney before making any decisions or taking any action based on this information. This information is provided for educational purposes only and does not constitute the rendering of tax or legal advice.
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