If you are going to make estate planning decisions that will not please someone that will be expecting a bequest, you have to consider the possibility of an estate contest. These situations are messy, and they negatively impact everyone in the family.
In this post, we will share four tips that you can help you minimize the risk of an estate contest.
Don’t Die Intestate
The most basic step you can take to make sure your true wishes are carried out is to actually create a will or trust.
If you die without any estate planning documents, the Surrogate’s Court would preside over the intestate estate case. When there is no input from the decedent, the court will hear any claims that are made and make a determination.
Ultimately, the assets will be distributed under the intestate succession laws of the state of New York. The outcome may or may not be consistent with your actual wishes.
Why take chances when qualified estate planning assistance is just a phone call away?
Utilize an In Terrorem Clause
When you are creating your will or trust, you can include an in terrorem or no-contest clause. This clause would trigger the total disinheritance of any heir that contests the terms of the estate planning document.
Of course, a disgruntled party could come forward anyway, but it would be a risk that most people simply would not be willing to take. The exact level of risk will depend on the size of the inheritance that they would be jeopardizing.
You should keep this in mind when you are drawing up your estate plan if you want to prevent estate challenges. The same dynamic would apply to the complete disinheritance of a child. If they have nothing to lose, a challenge is more likely.
Don’t Use a Will
If you state your final wishes in a will, you would name an executor in the document to act as the administrator. After your passing, they would not be able to act independently without court supervision.
The will would be admitted to probate, and the court would preside over the administration process. Since there is a proving of the will, anyone that wants to present a challenge can come forward during probate to make their argument.
In addition to this open window of opportunity, there are other probate drawbacks. It will take nine months at minimum in most cases, and no inheritances are distributed until the estate has been probated by the court.
Probate expenses consume part of your estate, and it is a public proceeding, so anyone that is interested can access the records.
A revocable living trust is the ideal alternative as an asset transfer vehicle. The court would not be involved during the administration process, so the open opportunity for an estate challenge would not exist, and the other drawbacks would be avoided.
It should be noted that someone could file a lawsuit to challenge the terms of a living trust, but it is complicated, and there are legal expenses. Plus, the no-contest clause would serve as an additional disincentive.
Review Your Plan Periodically
Estate planning should be viewed as an ongoing process, because updates may be necessary as the years pass. Even if nothing has happened in your own life that would trigger the need for an update, there can be changes to relevant laws.
There is also a benefit when it comes to potential challenges. When your family knows that you have always kept your estate plan up to date, they will have a hard time contending that your will or trust did not actually reflect your true wishes.
We Are Here to Help!
Today is the day for action if you are going through life without an estate plan, and we can help you adjust your existing plan if an update is needed.
Each situation is unique, and there is no cookie-cutter, one-size-fits-all plan that is right for everyone. Personalized attention is key, and this is what you will receive when you choose our firm.
You can set the wheels in motion right now if you call us at 212-973-0100, and you can use our contact form if you would rather send us a message.