A contested estate can create a nightmarish scenario for your family, so you should take the appropriate steps to prevent problems before they happen. With this in mind, let’s look at some tips that should help you facilitate a smooth estate administration process.
Take Action to Put a Plan in Place
When it comes to the difficulty level of the administration phase, the worst thing you can do is nothing at all. If you die intestate or without an estate plan, the probate court would be forced to enter the picture to sort everything out.
Since your own true wishes would not be clearly stated in writing in a legally binding manner, interested parties can claim that you would have wanted them to receive inheritances.
There are intestate succession laws that the court will follow under these circumstances, but a contested situation can be time-consuming, complicated, and messy. And of course, hard feelings between certain family members can linger after the estate is finally closed.
Even if there are some decisions that you are not entirely certain about, you should create a will or trust that reflects your wishes at that moment. As time goes on, you can make adjustments if necessary, and you will prevent an intestacy situation.
Use a Living Trust
If you utilize a will as the centerpiece of your estate plan, you would name an executor to act as the administrator, and the executor would admit the will to probate after your death. Your wishes would be recorded, so this would be far better than intestacy, but there are other perils.
Probate is a public proceeding, so anyone that is interested can dig into the details. Plus, there is a proving of the will during probate. The court is required to examine the will to determine its validity, and this opens the door for will contests.
There is a built-in forum for challenges, so it is easy for a disgruntled party to come forward and make a case. Even if they are not successful, this will slow down an already lengthy process, and no inheritances are distributed while the estate is being probated by the court.
A living trust is an alternative to a simple will. You do not have to be concerned about losing control of assets that you sign over to the trust, because you would act as the trustee. This would be a revocable trust, so you could dissolve it if you ever choose to do so
The administration of a living trust is not subject to probate, so it would be done in a confidential manner. Plus, there is no ready opportunity for disgruntled parties to approach a court.
It is possible to file a lawsuit to contest the terms of a living trust, but this is expensive and much more complicated.
Include a No-Contest Clause
You can include a no-contest or in terrorem clause in a will or a living trust. If you do this, it would trigger the complete disinheritance of any heir that contests the terms.
They could ignore the risk and proceed with a challenge anyway, but this would serve as a very powerful disincentive.
Review Your Plan With Your Attorney
The law is unambiguous when it comes to your right to pass along your estate in any manner that you choose. In order for someone to successfully contest a will or trust, they have to prove that the document does not reflect your true wishes.
If you create a plan when you are 25 and you never look at it for the next 60 years before you pass away, a contention that the plan did not reflect your true wishes at the time of your death would be reasonable. This is an extreme example, but any long periods with no reviews could raise suspicions.
With this in mind, you should sit down with an estate planning attorney and review your plan every year or two. When your attorney can attest to the fact that you approved of the terms at all times, a challenge would be a steep uphill climb.
Aside from this part of the equation, change is the only constant. Events in your life can trigger the need for estate plan updates, and laws that are related to estate planning are subject to change, so regular estate plan reviews are highly recommended.
We Are Here to Help!
Our doors are open if you are ready to work with a Vermont estate planning attorney to put a plan in place. You can schedule a consultation appointment if right now if you call us at 802-879-7133, and you can use our contact form if you would like to send us a message.