I am often asked about this topic by my clients, especially when they are alienated from and wish to disinherit a child or family member.
When these types of situations arise, there are many steps you can take to avoid your Will from being contested by individuals who believe they are entitled to receive your assets:
1. Avoid Probate
A Last Will and Testament only controls assets that are in your name alone (with no beneficiary) on your date of death. One of the best things you can do to avoid a Will contest is ensure that no assets pass through your Probate estate and are controlled by your Will.
In order to be valid, a Will must be admitted to probate and the individuals who are entitled to receive assets if you passed away without a Will (called “distributees”), including those that you decided to disinherit, need to be provided with notice of the Will being admitted to probate. This often opens the door for the Will contest.
2. Use a Revocable Trust
A revocable trust is a vehicle that allows you to have full control over your assets during your life, but avoids probate when you pass away. The trust does not have to go through the probate process, and therefore no one needs to be provided with notice of the trust’s existence or the terms thereunder. This allows your wishes to stay private, especially where you are disinheriting certain individuals.
A revocable trust is not totally immune from a contest, but it makes a contest significantly more difficult, as there is no requirement that the distributees be provided with notice of the trust.
3. Joint Owners and Named Beneficiaries
Having joint owners on your bank accounts and named beneficiaries on your retirement assets are simple ways to avoid probate and allows assets to pass directly to your intended beneficiaries. However, issues can arise where the joint owner or named beneficiary predeceases you. A trust can provide contingencies for these situations and is therefore a better long-term solution.
4. Include a “No Contest” Clause in Your Will
A No-Contest clause, also referred to as an “in terrorem” clause should be placed in your Will in order to deter potential Will contests. These clauses often state that in the event of a Will contest, the individual seeking to contest the Will would forfeit any distribution to him or her if he or she were not successful in the Will contest.
In addition to the above steps, it is important to meet with an experienced estate planning attorney and provide him or her with detailed information as to why an individual is being disinherited or being left a lesser amount of money than others under your Will. This information will be helpful in assessing the potential for a Will contest and protecting against one being brought in the future.
Lauren C. Enea, Esq. is an Associate at Enea, Scanlan & Sirgnano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Special Needs Planning and Probate/Estate Administration. She graduated from Pace University School of Law Summa Cum Laude and is admitted to practice law in New York and Florida. Ms. Enea is the Sponsorship Chair of the Elder Law and Special Needs Section Sponsorship Committee of the New York State Bar Association (NYSBA), the Co-Chair of the NYSBA Elder Law and Special Needs Section 2020 Fall Meeting and the Publications Committee Production Editor for the NYSBA Elder Law and Special Needs Section Journal. She can be reached at (914) 948-1500 or at L.Enea@esslawfirm.com. Please visit www.esslawfirm.com for more information.
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