In discussing the importance of wills and how estate planning doesn’t have to be intimidating, there are many people who think that writing something in a diary or putting your wishes in an informal document means they’re covered. In reality, the reason a legal professional is necessary is to prevent an invalid or incomplete document. The point of a will that is completed by an attorney is the assumption that a professionally drafted will can stand up to scrutiny and legal arguments if contested by your family. A will can be invalidated for a variety of reasons, which is why it’s crucial to have it completed by a professional who understands how to avoid common errors that can leave your final wishes open to debate.
A will can be invalidated by the court if:
- The final will wasn’t signed by the decedent
- There weren’t witnesses to the will (you need two)
- The signed witnesses were not informed they were signing a will
- A beneficiary is one of the witnesses to the will
- The testator (also known as the decedent once they’ve died) was fraudulently convinced to sign a will with new provisions, or they didn’t know the document was part of a will
- The mental fitness of the testator was in question when the will was signed or modified
- A judge will determine the will unenforceable if they are suspicious of the will and the motivations of its creation and signing
A will can be contested if the court is presented information showing that it may have been written under duress or it’s filled with mistaken information. The will can only be contested by interested parties. Those with interest are considered people named in the will like heirs, creditors, and beneficiaries. Qualified parties can contest the will by petitioning for the probate of the will to be halted. The petition has to include the specific reasons for the opposition to the will.
4 Ways to Decrease the Likelihood Your Will Could be Contested
Your estate plan, specifically your will, can only be contested on legal grounds. An unhappy party can’t simply arrive and contest your will without viable legal reasons. So, to avoid the likelihood anyone will want to contest your final wishes, you should begin by ensuring your documents are accurately prepared.
Here are some tips to lessen the likelihood of a contested will:
- Find a Professional: A will is a legal instrument that has specific requirements. A lawyer with experience in estate planning can help.
- Follow the Guidelines and Rules: A will requires two witnesses and certified signatures to be validated. These witnesses and signatures cannot come from anyone named in the will. These witnesses should be unrelated if possible, avoid any appearance of impropriety.
- Don’t Keep it a Secret: Explain your final wishes to your family in advance. There really is no reason to keep your will a secret. It only heightens the likelihood of arguments and tension. If your family knows and understands the reasons for your decisions, you are likely to reach a better outcome.
- Consider a No-Contest Clause: If you are worried about challenges from a specific family member, you could consider adding a no-contest clause to your will. If the challenging family member contests the will, they will lose their inheritance. This clause only works if the person contesting the will was standing to inherit. If this person were not included in the will but is a family member – this clause would not be an option.
If you think your will may be challenged by family and interested parties, contact Palmer Rodak & Associates. Our attorneys can help you evaluate the quality of your existing will. We can compare your will to California legal requirements and help you draft a stronger document for your estate plan.
Contact us today at (760) 573-2223 to get started.