Prepare for Will Contest
In my experience, nothing causes a person to show their true colors than when money is involved. When your children are expecting to inherit your property upon your death, but your will excludes one of the children or provides for an unequal distribution, then the likelihood of your estate being tied up in court increases. So, what can you do to prevent the value of your estate from being eroded by the cost of defending your wishes set forth in the will? How can you prepare for a will contest?
Here are some ideas:
Use a Trust
Distribute your property through a trust instead of a will. A will goes through the probate process that is overseen by a court. Filing a challenge to the will that is in probate is not difficult because the case is already before the court. However, if you leave your property to a trust, then the court is not involved. Of course, the trust would need to be set up during your lifetime. By creating an inter vivos trust during your lifetime, you could transfer property to the trust and continue to use the property by naming yourself the beneficiary. Your will should have a pour over provision so your remaining property would be transferred to the trust upon your death.
Letter of Instruction
Write a Letter of Instruction. The purpose of the letter is to give your executor the information they need to distribute your property upon your death. The letter would have practical information, such as where your will is kept, the passwords to your online accounts, a list of your creditors and bank accounts, and how you want your personal items distributed.
Oftentimes, a will may say that the personal effects shall be distributed to more than one person. It is left to the executor to decide how to divide the property. Your letter can provide more details on how the division should be made, e.g. watch to John. The letter can also explain why you are not leaving the property to one of your children or why the children are not inheriting equally. For example, one may be wealthy or has a successful career, or perhaps you provided one of the children a lot of financial assistance during your life.
Distribute Property Early
Give the property away during your lifetime. I have had clients who have already distributed their property to their children. This avoids having the property in the estate and subject to challenges. However, one of the children may allege that just because one of the children is in possession of an item does not mean the parent gave the item away. Or, one child may argue that the other child has possession of the property without knowledge of the parent. One way to avoid such a challenge is to give a bill of sale or make a signed statement that you gave the item to the child.
No Contest Clause
Include a no contest clause in your will. This type of clause will say that if a person challenges the will, then they will not be allowed to receive any property. In order to discourage a person from challenging the will, you should give the person some items in the will or the person has nothing to lose by challenging the will.
Hire an Experienced Attorney
Hire an experienced estate planning attorney to draft your estate plan. There are some companies that sell you a template that you can make your will yourself. Saving a few dollars in the beginning could cost you and your family much, much more defending challenges to the will.
Contact the Law Office of Hugh Spires, Jr. at hspires@TexasWillsLawyer.com or through the contact form on our website. We offer free consultation and can tailor an estate plan to meet your specific situation.