When it comes to wills, you would think that what is written is the final word. While this is mostly true, and most wills go through probate without too many problems, sometimes beneficiaries may want to challenge, or contest, the validity of your will.
Will contests can be crucial for insuring that the written will is valid, but they can also make a lengthy probate process even more time-consuming, keeping assets from your loved ones for a longer period of time.
Follow these estate planning tips to prevent your will from being contested:
Write Your Will As Soon As Possible – One of the reasons someone may contest a will is that they believe the person writing it was not mentally capable of doing so. The sooner you write your will, the less of an argument someone will have for mental incapability.
You may also want to consider writing a power of attorney or advance directive. These documents allow you to choose someone to take over your legal and financial decisions if you do lose the mental capability to make those decisions for yourself.
Choose Witnesses Wisely – Another reason someone may contest is a will is undue influence. If it can be shown that a fiduciary or beneficiary exerted a strong influence over the content of your will – particularly if the resulting document benefits them, it could be struck down as invalid.
When you are drafting and signing your will, recruit witnesses with whom you do not have a fiduciary relationship. They have less of a reason to influence your last wishes, and will help prevent your will from being contested on the grounds of undue influence. Having your estate planning lawyer present will also insure that your will reflects your last wishes, not a beneficiary’s.
Put Assets Into Trusts – If there are fewer assets that are distributed through your will, beneficiaries will have less to debate over. Many of your assets or property can be placed into trusts. Trusts can be transferred to beneficiaries and loved ones without going through probate first. In other words, not only can trusts make your will a simpler document, they get property to the people who inherit it sooner.
Review Florida Law – Wills can be contested if they were not properly created or officiated. Make sure that your will follows Florida’s guidelines: the will was signed by two witnesses and notarized, it is not a handwritten or holographic will, and so on.
Build and Communicate with Your Estate Planning Team: The more people you discuss your estate plan with, the less confusion there will be when probate officially begins. Just be sure to update your team on any major changes to your will, trusts, and any other documents, so everyone is on the same page. Check out our past blog post on who to recruit for your estate planning team.
It is especially important to talk to your personal representative. Throughout the probate process, your personal representative will be the one who has to answer questions and handle all of the logistics of getting your estate to the right people. Keeping them in the loop will give you the best chance at having your will executed in the way you would have wanted.
In short, proper planning and a commitment to updating your estate plan according to your wishes is the best way to ensure a smooth probate process without any will contests. Start your planning today by reaching out to a Florida estate planning lawyer.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.