Preparing a Proper Will

by | Jul 13, 2017 | Estate Planning, From the Firm | 0 comments

Talking about estate planning can be a difficult discussion for many people. There can be many reasons that individuals avoid the thought, but having a will is of utmost importance for everyone. Whether it’s with regards to finances, possessions, family members, and even pets, having a plan will protect the ones you love as well as your estate.

When thinking about your legacy, having the RIGHT kind of will is even more important.  A self composed will, or hand written document can often create more problems no will at all. Challenges to invalidate wills, or will contests, are generally made by potential heirs or beneficiaries who receive little or nothing from the will. However, simply being unhappy about a will isn’t a good enough reason to invalidate it. There must be valid legal ground for a will contest to be successful. Wills are typically invalidated on the ground that:

  1. The will was a forgery;
  2. The will was not properly drawn, signed, or witnessed, according to the state’s requirements;
  3. The decedent lacked mental capacity at the time the will was executed; or
  4. There was fraud, force, or undue influence.

If the will is held invalid, the proceeds are distributed under the laws of intestacy (the laws that apply when there is no will), which means that an inflexible formula will determine which of your heirs get what, regardless of your preferences.  In addition, will contests are expensive, and the money to pay to defend a will contest is taken out of the total assets of the estate, meaning all heirs suffer.

For these reasons, it’s best to do everything possible to avoid a will challenge if you know someone will be disappointed or angry about the provisions of your will.  Needless to say, if there is even the possibility of a will contest, an experienced lawyer is a must to help you prepare your will.

An experienced lawyer can help prevent fights among your beneficiaries and instead promote acceptance that your true wishes have been spelled out and will ultimately be fulfilled. For example, your lawyer may ask a physician to evaluate your mental competence—and perhaps serve as a witness when you sign your will. Your lawyer can videotape your execution of the will (signing before witnesses).  Additionally your lawyer can include a no contest clause in your will, which states that if anyone files a lawsuit to challenge who you have provided for in your estate plan, then the person challenging the will or trust will receive nothing from your estate.  Finally, don’t forget about your will. A consistent pattern of sitting down with your attorney once a year to review your will sends a powerful message that will help to stave off any thoughts of a will contest.