June 5, 2014. Sometimes a fight over a Will is inevitable. There are, though, a couple steps you can take to reduce the chances of a dispute.
#1) Think carefully before disinheriting someone. In reality, there are only a limited number of people you can exclude from your estate, anyway, as a person can only be disinherited if they would have received something in the absence of a Will. Usually, if someone is excluded, it is a child. Before making a decision to disinherit, you should reflect on the consequences of the choice. Excluding a child is only going to make the child angry, and all the more eager to bring a fight. As an alternative, maybe some smaller disposition could be offered to mollify the individual. Enough for them not to feel spited. This isn’t always possible, some kids are reprobates, and we can’t be expected to reward horrible behavior. But it is a thought.
#2) Insert a No-Contest Clause. Throw in an in-terrorem clause, which simply says if you contest the Will, anything you would get under the Will goes to someone else. While I would question the overall effectiveness of these sometimes, they are a great deterrence to a fight. Of course, as a practical matter someone has to have something to lose under the Will for the clause to be effective. You have to give them something. Another reason to think carefully about disinheriting someone.
#3) Communicate. Again, not always possible, but the more you communicate with those around you (however defined), the smoother the transition at your death. Obviously, there are some aspects of an estate plan intended to be private, and some details that a person does not want revealed before death. However, to the extent you can, explaining the basics of your plan and your intentions can stem future conflicts. This could mean having to explain why one child gets the business and the other children are compensated with other assets and insurance. Sometimes these are uncomfortable conversations. But, the hope is that once people understand your plan and its reasons, they will be more likely to go along with it.
#4) Obey the Formalities. There are a few rules when creating a Will. Follow them. It doesn’t seem like they should matter so much, but they do. So, make sure there is a signature, and the right number of witnesses, and that the witnesses do not have a conflict of interest. When you fail to follow these, you jeopardize the validity of the Will. Once you jeopardize the Will, it can become a fight amongst your heirs to determine who gets what in your estate.
For more information regarding estate planning and how to avoid a will contest at your death, contact the Goosmann Trust Law Counsel at info@goosmannlaw.com or call 712-226-4000.
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