It’s easy to assume that none of your beneficiaries will contest your will. Unfortunately, this assumption isn’t true. The beneficiaries of your estate may contest your will, especially if they can establish the need for more provision. It’s essential to create a will that none of your beneficiaries will disregard. At Tanko Law, we help you create a will that will keep your last wishes safe long after you’re gone.
1. Write Your Will Early and Update Regularly
The best time to write your will is when you are in good health, and no one can contest your capacity. Your beneficiaries may challenge your testamentary capacity. As you grow older, it becomes easier for your beneficiaries to argue that you were not of “sound mind.” When you write the will early, you eliminate any doubts about your mental health. Also, you can sign your will when you understand all your assets and beneficiaries.
Beneficiaries may also contest your will if they believe that you signed it under duress. Undue influence is a suitable reason to disregard a will, mainly if you lived with a caretaker who controls everything you do. Also, after you write your will, remember to update it regularly. The circumstances in your life will change, and adapting your will ensures that your inheritance goes to the right beneficiaries. You can engage one of the attorneys at Tanko Law annually, to ensure that your will meets your wishes and has no room for a contest.
2. Include a No-Contest Clause
A no-contest clause, also known as a terrorem clause, is a provision which states that a person who files a lawsuit to contest your will shall receive nothing from your estate. No-contest clauses are beneficial if the beneficiary has something to lose. If the value of the inheritance is worthwhile, you can prevent contests. However, if a person is completely left out of your will, there is no incentive not to disregard your will.
Whether or not a no-contest clause is legally enforceable depends on the laws of the state. In Montana, a no-contest clause is enforceable unless there is a probable cause. If evidence exists that there is a probable cause, the no-contest clause is unenforceable. For instance, if the testator was under undue influence or if fraud was committed, the beneficiaries can disregard the will and contest it.
3. Execute Your Will Properly
Your beneficiaries may disregard your will if you fail to execute it properly. Any problems in the execution process are valid grounds for heirs to contest your will. First, ensure you sign the will when you have the capacity. This will prevent any contests concerning your mental wellness.
Also, remember to select two witnesses to oversee the signing. Ensure that you choose witnesses who are not beneficiaries of your estate. You should also choose witnesses that will be alive after you’re gone. This is because the courts may call them after your death. Remember to also sign the will in the presence of your attorney and witnesses.
It’s also useful to record your will execution process. This will provide concrete evidence that you were fully aware of your actions and had your witnesses in place.
4. Discuss with The Beneficiaries
It may be a good idea to discuss your estate with your beneficiaries to avoid unpleasant surprises. In most cases, family members and other close members contest wills because they feel disenfranchised. Talk to your heirs and help them understand your decision. You may also settle disputes and understand your beneficiaries better. It’s also wise to remember that while you can disinherit any of your beneficiaries, including your children, you cannot cut off your spouse. The courts will award a certain portion of your estate to your spouse. It’s, therefore, best to settle any disputes and assign the part of the estate you wish.
5. Create A Trust
Let’s say you have a large estate and aren’t sure how to divide the property and assets equally. Or maybe, you do not trust the beneficiaries to ensure the protection of your estate. What can you do? Try setting up a trust. When you set up a trust, your assets no longer belong to you. Instead, they belong to the trust and can be distributed by a trustee, who you can also appoint.
Revocable living trusts are a suitable option if you want to preserve the size of your estate. Unlike a will, a living trust prevents your details from being made public to anyone not privy to the trust. If you create the trust early in your life, you can revoke the trust, claim the assets, or divert certain assets to different beneficiaries. You also have the option of managing your trust and appointing a trustee later in life to avoid contests based on your mental capacity.
After your death, a revocable trust automatically changes into an irrevocable trust. Your successor trustee takes over and handles your estate to pay all debts and bills, and also distribute the estate to your beneficiaries. What’s more, is that you can include clauses that prevent overspending.
6. Separate Your Assets from Your Estate
Non-estate assets, such as property under joint tenancy, can ensure that the property passes on to the beneficiary you want them to pass to. For example, if you own property with your spouse or sibling, your share of the property will pass on to them under joint tenancy, without consulting your will.
Usually, assets with rights of survivorship, whether under joint tenancy or group or community ownership, cannot be included in a will. Contesting assets listed under joint tenancy is difficult for anyone looking for ways to disregard your will. Other assets such as joint bank accounts also pass on your share to the surviving joint bank account owner. You can use the right of survivorship to ensure that the property goes to the right beneficiary, and also prevent anyone from contesting your will since the property is not listed in the will.
Find Professional Help in Montana
Protecting your estate after you’re gone requires an expertly written will. With Tanko Law, you can receive information and assistance with your will, and also ensure that it’s enforceable after you are gone. Contact us today for professional guidance.