You can’t completely prevent someone from contesting your will. But there’s some good news: Less than 3% of wills in the United States face legal challenges. So statistically speaking, you probably don’t need to worry. But contesting a will isn’t just the stuff of bad soap operas. Learning what makes a will legal and how contests happen can help you protect your family’s financial interests.
What Makes a Will Legal?
Every state has rules on what makes a will valid, but most include a few basic requirements. Nolo mentions that wills must be in writing and signed by witnesses. Wills must also be signed and dated by their creators. You must also have testamentary capacity, which means you need to understand the legal effects of signing a will. You should also be free from undue influence – extreme pressure or severe duress.
To pass legal muster, your will cannot be a product of deceit. A con artist could trick you into signing a will by telling you that it’s something else – perhaps a power of attorney document. In this case, an interested party can contest your will on the basis of fraud.
Who Can Contest a Will?
Even if a will fails to meet legal requirements, not just anyone can contest it. Estate planning expert Julie Garber mentions that challengers must have the legal standing to question a will’s validity. These people are “interested parties” because of their financial stakes in a person’s estate.
Heirs-at-law left out of a will could bring legal challenges to it. An heir-at-law is someone who would normally get a share of a person’s estate if there was no will. Each state’s intestate succession laws define who would inherit from these estates. Usually, these include spouses and direct descendants such as children or grandchildren. A person's parents and siblings can inherit from an estate if there are no living spouses, children, or grandchildren.
Named beneficiaries in an older will could also contest a newer version of the same document. People previously named as fiduciaries or executors can bring challenges if they’re left out of an updated will. Heirs whose shares of an estate are reduced in a newer will also have legal standing to contest it. Minors cannot challenge a will, but their legal guardians can contest it on their behalf.
How Can Someone Contest a Will?
If someone has both legal standing and grounds, that person can challenge a will’s validity. But as Investopedia mentions, this process is also long, complicated, and stressful. Challengers must decide if the financial benefits outweigh the legal cost and emotional burdens.
Anyone contesting the will usually examines the document, hires an attorney, and files a challenge. They must prove either diminished capacity, coercion, or fraud. And without rock-solid proof, such challenges won’t succeed in court.
How Can I Prevent Challenges to My Will?
Although most wills aren’t challenged, yours may not be completely contest-proof. If you marry a same-sex partner, there’s always the chance a non-affirming family member could contest your will. And if you have a substantial estate, this relative may decide that the potential benefits are worth the time and legal fees.
Thankfully, you’re not without solutions. The Balance mentions no-contest clauses, which prevent challengers from getting anything from your estate if they lose in court. You could set up a living trust to hold your assets – it doesn’t go through probate. But no matter what you do, be sure to keep extensive documentation.
Keeping Your Family’s Finances Safe
No estate plan is problem-free. But doing your homework and taking precautions can save your loved ones time, money, and hassles. Keep documentation of what you do and why you do it. And don’t forget to consult a professional if you need help. With these steps, you can help safeguard your family’s finances after you’re gone.