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What Can I Do to Discourage a Will Contest after I Am Gone?

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If you are planning to execute a Last Will and Testament, a primary motivation is probably to ensure that your estate assets are distributed according to your wishes after your death.  If that Will is invalidated because of a Will contest, however, that State of Vermont (or your state of residence at the time of your death) will decide what happens to your assets. That provides a strong incentive for doing everything you can to discourage a Will contest. An Essex Junction estate planning attorney at Unsworth LaPlante, PLLC discusses what you can do to discourage people from contesting your Will.

What Is a Will Contest?

Your estate will likely go through the legal process known as “probate” after your death. Ultimately, probate results in the distribution of a decedent’s estate assets; however, another function of the probate process is litigating any challenges to the decedent’s Will. If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid, and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets.  After going to trouble of executing a Will, no one wants the terms of that Will to effectively be ignored after they are gone.

Grounds for Contesting a Will in Vermont

A Will cannot be challenged based solely on the fact that a beneficiary isn’t happy with the inheritance they received (or didn’t receive) in the Will. To succeed in a Will contest in the State of Indiana, a contestant must prove at least one of the following legal grounds on which the Will can be declared invalid:

  • Incompetent Testator
  • Undue influence
  • Improper execution

Ways to Discourage a Will Contest

Unfortunately, there is no way to guarantee that your Will won’t be contested. There are, however, some steps you can take that will discourage a Will contest, including:

  • Work with an attorney when creating your Will. The DIY route may sound like a great way to save time and money when creating your Will; however, DIY legal documents are typically riddled with ambiguities and errors, making litigation more likely down the road. Working with an experienced attorney gives you the benefit of professional advice and oversight as well as providing another disinterested witness who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
  • Pass assets outside of your Will. Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets, when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
  • Schedule a complete physical just prior to executing your Will. “Lack of testamentary capacity” is a common basis for a Will contest. A good tactic for heading off such a claim is to get a complete physical done within days of executing your Will.
  • Leave behind a Letter of Instruction.  This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
  • Consider including a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary regarding how they approach no contest clauses. Vermont is the only state that does directly address the enforceability of no contest clauses by statute or common law. For that reason, be sure to discuss the option of adding one with your estate planning attorney.

Contact an Essex Junction Estate Planning Attorneys

For more information, please attend one of our upcoming FREE webinars. If you have questions or concerns about what you can do to discourage a Will contest, contact an experienced Essex Junction estate planning attorney at Unsworth LaPlante, PLLC by calling 802-879-7133 to schedule your appointment today.

Ellen LaPlante
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