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Michigan Elder Law Today

Saturday, May 7, 2016

How to Avoid a Will Contest

What is a will contest?

Many individuals who put off writing a Will run the risk that a probate court judge will distribute the property in a manner that does not agree with their wishes. And those who put a will in place may leave their estate open to a will contest if a dispute arises among family members. Contests typically arise when a will is not properly executed, the testator lacked the mental capacity, the appointment of the executor is being challenged, and various other disputes.

There are steps you can take, however, that can prevent a will from becoming a matter for the probate court to decide.

Don't Delay

The first mistake many make is procrastinating and then writing a will when their health is failing. It is crucial to put an estate plan in place when you are of sound mind and body in order to avoid contests that the will is invalid because you lacked the mental capacity.

No Contest Clauses are Not an Option

In some states it is possible to include a no contest clause in a will or trust that disinherits anyone who brings a challenge. However, courts in Michigan have restricted the enforceability of no contest clauses when an interested individual has probable cause to challenge the will.

The Benefit of Trusts

One way to avoid a will contest is to establish a revocable living trust because it is a personal and private document that does not have to be filed as a public record. A will, on the other hand, is a public document which can be left open to a dispute once it is filed in probate court. In addition, lifetime trusts are flexible and can distribute assets to beneficiaries upon achieving personal and financial goals. Discretionary lifetime trusts can also be established for troubled beneficiaries  who might spend through the inheritance.

Undue Influence

Will contests can arise based on claims that the testator was under undue influence of one of the beneficiaries. Therefore, you should write your will privately and not include beneficiaries in discussions with your attorney about your estate plan. Obviously, beneficiaries should not serve as witnesses to your will. At the same time, once you will is in place, your loved ones should be informed of your decisions and the reasons behind them in order to avoid surprises and the potential for disputes.

Update Your Estate Plan

Putting a will in place or establishing an estate plan is not a "one and done" deal. Your will should be reviewed periodically in order to consider changes than can occur to your personal or financial situation.

In the final analysis, writing a will is best served by engaging the services of an estate planning attorney who can ensure that the will is well designed and properly executed. Consulting with an attorney will also ensure the validity of the will and head off a possible contest.


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