Potential estate challenges should be taken into consideration when you are planning your estate. If you know that there is someone close to you who will not be happy with your decisions, don’t ignore the potential fallout.
Yes, you have the right to make your own choices, and you will not be around to hear any negative feedback. That being said, a disgruntled individual could potentially issue an estate challenge which could bring the administration process to a standstill.
Even if it is not successful, a contest could create significant difficulties and permanent acrimony within the family.
Grounds for Challenging a Will
The primary purpose of this post is to explain how you can prevent successful challenges, but it is prudent to take a brief look at the other side of the coin. When a will is used to facilitate asset transfers, it is admitted to probate and the court provides supervision during this process.
One of the functions of the court is to determine the validity of the will. Someone could step forward to challenge a will based on legally accepted grounds, and this is a necessary safeguard.
Improper execution is one of the grounds, and the laws that must be followed vary depending on the state in question, but they are all very similar. One of our offices is in Kentucky, and in this state, a will must be signed in the presence of two witnesses, and the witnesses must sign the document in front of each other.
In North Carolina, there is the same two witness requirement, and they have to sign the will in front of the testator. Under NC Gen. Stat. § 31-3.3, the witnesses do not necessarily have to witness each other sign the will (although that is good practice).
Other grounds for a contest would include fraud, incapacity, and undue coercion. If the will was signed under any of these circumstances, it could be deemed invalid by the court.
Preventing a Will Challenge
One way to prevent a will challenge is to make sure that you state your wishes with absolute clarity when you are executing your last will. The witnesses should be very credible, and they should not have any conflicts of interest that could raise any eyebrows if a challenge was presented.
Communication is key here as well if it is at all possible. You can directly reach out to a person who may not be happy with your choices and explain your reasoning. They may ultimately harbor no hard feelings, and short of this, they may recognize the fact that there is no legal basis for a will challenge.
Challenges to Revocable Living Trusts
A revocable living trust can be a better choice than a last will as your estate plan centerpiece for a number of different reasons. We will get into other reasons in future posts, but one benefit is the ability to be proactive about the possibility of a challenge to your wishes after you are gone.
If you think that a beneficiary that is included in the trust will not be satisfied with the amount that they are going to receive, you can include a no-contest provision. This would trigger the total and complete disinheritance of a beneficiary who challenges the trust terms.
It should be noted that asset distributions via the terms of a living trust declaration are not subject to probate. As a result, the court would not be involved so there is no ready opportunity for parties who want to issue challenges.
A lawsuit could be filed, but this is costly and complicated, and the no-contest provision would serve as a powerful disincentive.
Schedule a Consultation Today!
You should certainly discuss your estate planning goals with a licensed attorney if you are going through life with no plan at all. It is also wise to consider revising your existing plan if it was put into place years ago because life changes can trigger the need for updates.
Our doors are open if you are ready to connect, and you can schedule a consultation at our North Carolina offices if you give us a call at 704-944-3245 (Charlotte, NC and Huntersville, NC). The number in Kentucky is 606-324-5516 (Ashland, KY) or 859-372-6655 (Florence, KY), and you can alternately send us a message through our contact page to request a consultation appointment.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
- What You Need to Know about the Medicaid Look-Back Rule - January 3, 2023
- How to Pass Down Your Legacy in Your Estate Plan - October 3, 2022
- Practical Steps to Take after Receiving a Terminal Diagnosis - September 30, 2022
