5 steps to minimize the risk that your Will is challenged

Emotions can run high at the death of a family member. If a family member is unhappy with the amount they received (or didn’t receive) under a will, he or she may contest the will. Will contests can drag out for years, keeping all the heirs from getting what they are entitled to. It may be impossible to prevent relatives from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out.

Your will can be contested if a family member believes you did not have the requisite mental capacity to execute the will, someone exerted undue influence over you, someone committed fraud, or the will was not executed properly.

The following are some steps that may make a will contest less likely to succeed:

1.Make sure your will is properly executed. The best way to do this is to have an experienced elder law or estate planning attorney assist you in drafting and executing the will. North Carolina has specific signing requirements that must be followed.  For example, a blood relative cannot be a witness to the Will.

2. Explain your decision. If family members understand the reasoning behind the decisions in your will, they may be less likely to contest the will. Depending on your personal situation,  you may decide it is a good idea to talk to family members at the time you draft the will and explain your decisions. If you decide that speaking to family is not the appropriate avenue for you, perhaps consider stating the reason in the will or a separate writing found with you will.

3.  Use no-contest clause. An effective way of preventing a challenge to your will may be to include a no-contest clause (or in terrorem clause) in the will. A no-contest clause provides (very generally) that if an heir challenges the will and loses, then he or she will get nothing or a possibly a minimal amount.

4. Prove competency. One common way of challenging a will is to argue the deceased family member was not mentally competent at the time he or she signed the will. The best way to avoid this question is to choose a qualified Estate Planning attorney that knows the proper method of having a Will consult and what he or she is required to determine during the consultation and at the time of signing.

5.  Remove the appearance of undue influence. Another common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, perhaps the choice is made to deliberately not involve caregiver family members during the process.

Keep in mind that every family situation is different.What may work for one client may not be the appropriate process for you.  It is essential that you consult with a qualified Charlotte Estate Planning attorney to properly handle the creation of an Estate Plan.  Call Sabrina Winters at (704) 843-1446, I’d be happy to discuss with you our processes.

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