How to Avoid Challenges in Your Will or Trust

May 15, 2024 | Estate Planning

Although you may have taken the time to create a well-designed will and/or trust that distributes your property as you desire upon your death, there are some common challenges which may present themselves upon your passing. Disputes among your  beneficiaries can result in bitter family relationships, costly court proceedings and financial devastation. The following are some proactive measures you can take to avoid common challenges and ensure your documents accomplish your intended goals.

Treat children equally: Family dynamics may have you questioning whether your assets should be divided equally between your designated beneficiaries who are often your children.  In order to avoid potential complications, especially if there is already discord, equal distribution may be a wise decision. If you have two children, leave each child half of all assets. Setting up a trust for a child with bad spending habits can be a useful tool to help protect and manage their assets. This way, a designated trustee will have the responsibility of managing assets for their benefit. The trust may specify how assets can be utilized, establish incentives to encourage good behavior and set  restrictions to prevent erratic spending. Regarding control of your estate, delegate positions according to skill level or select a corporate executor or trustee to avoid anyone from feeling slighted.

Distribute tangible property through specific bequests: While monetary assets can be divided easily, it can be difficult to determine the true value of items of sentimental value and tangible property. Statements in wills or trusts which divide all “tangible personal property” among your beneficiaries in substantially equal shares may not be enough instruction for your beneficiaries. Substantive value can be based upon several characteristics including emotional and sentimental worth. Discuss this issue with your beneficiaries to determine the personal significance of certain items. By inserting specific bequests into your will or trust, you can mitigate squabbles regarding that antique lamp in the living room or your grandmother’s diamond ring.

Account for gifts given during lifetime: If you gifted money or property to a beneficiary in the past, make sure to account for it in your plan. Since your goal is to treat all your children equally, you might want to address this gift in your will or trust. Classify any gift as an advancement, with the value of the gift counting as part of the “residuary” money you will leave to that beneficiary. For example, if you gave your daughter $5,000 toward student loans, you would specifically state under her residuary share “less $5,000 gifted for student loan payments during my lifetime.”

Insert a no-contest clause in your will: Typically, a no-contest clause will state that if a beneficiary challenges the validity of the will and fails, that beneficiary will forfeit any inheritance they would have received. The clause acts as a threat and discourages those seeking to receive a bigger piece of the pie. If you know a beneficiary is prone to conflict, inserting this statement can prevent heated legal battles and ensure your estate is distributed as intended.

Prove your Competence: The beneficiary contesting the will or trust will often claim the maker of the document was incompetent, under undue influence from another beneficiary, or under duress during the signing of their will. To avoid these allegations, you may want to consider obtaining a medical evaluation which will confirm you are mentally competent and understand the nature and consequences of signing a will. This statement can be included in the will or presented to a court if the will is challenged. Another way to prove competence when signing a will is to have witnesses present at the signing. Witnesses can attest to the individual’s mental capacity and ability to understand the nature and consequences of signing a will, and to affirm that they believe the individual is of sound mind and not under any form of duress.

Disinherit any heirs: Leaving certain family members out of your will can be a source of contention among beneficiaries. If you are going to disinherit someone, make sure it is noted clearly in your will or trust so there can be no question as to whether you intended to exclude them.

At Duncan Legal, PC we understand the importance of tailoring our services to meet the individual needs of our clients.  Contact Duncan Legal to schedule a consultation.  Your peace of mind is our priority and we look forward to assisting you on your estate planning journey.

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