3 Steps to Take to Protect Estate Plan from Challenge
My brother and I are about ready to get my mother to make out her will and a revocable trust. How do you make sure that the will is not contestable? Is there a way to do that and what does that require?
Any will is contestable in that any party at interest has a right to challenge it. However, that doesn’t mean that any challenge will be successful. Your mother’s will can be challenged based on arguments that either your mother doesn’t have sufficient capacity to execute the will or she is under your and your brother’s undue influence, or both. Often these challenges are related since someone with failing capacity is more likely to fall under someone else’s undue influence. The burden is on the person challenging the will to prove these issues, though if you and your brother are acting as fiduciaries for your mother—handling all of her finances, for instance—the burden may switch to you to prove that she has capacity and you’re not unduly influencing her.
Protections to deter or win a challenge include:
- Work with a lawyer who is very careful to establish your mother’s capacity and her true witnesses who will be able to testify to this if there is a challenge.
- Include a so-called in terrorem or no-contest clause in the will. This says that if a beneficiary challenges the will, she will lose her benefits under the will. Of course, in order for this to have the desired effect, the potential challenger must receive something under the will or trust.
- Transfer all your mother’s assets to a revocable trust. The trust, unlike the will, is private. While keeping everything private and outside of probate doesn’t guarantee that there’s no challenge, it does make the challenge a bit more difficult.
What Should Doctors Know About Legal Incapacity?
What is the Standard for Incapacity to Sign a Legal Document?
6 Red Flags of Potential Undue Influence, and How to Respond
Don’t know how your trust works?
Whether you’re creating a plan, managing a trust, or are a beneficiary of a trust, this book is your easy-to-read roadmap.
If my home has a mortgage why then would an irrevocable trust not be the best option for asset protection?
It depends on what you are trying to protect your home from. Creditors? Divorce? Being spent down paying for long-term care? Making sure it stays in your family after your death? Putting your house into an irrevocable trust will not protect it from current creditors, but will from future ones. It will provide no protection in the event of a divorce of a marriage you’re already in, but like creditors, it may provide protection in the event of a future marriage, but a prenuptial agreement is always better. In terms of long-term care, it will provide protection after a five-year wait, but there is an issue in that every month you make a mortgage payment there’s an argument that you’re restarting the five-year clock, at least with respect to that payment. Also, this would lock up the equity in the house so it would not be available for your future care or other needs. In terms of protection of your family after you’re gone, an irrevocable trust would provide protection, but so would a revocable trust that would become irrevocable upon your death.