Can I Do Anything to Prevent Someone from Contesting My Will?
One of the most important reasons for creating your Last Will and Testament was likely to ensure that your estate assets are distributed according to your wishes after your death. If that Will is invalidated because of a Will contest, however, that State of Indiana (or your state of residence at the time of your death) will ultimately decide what happens to your assets. Can you do anything to prevent a Will contest? An Indianapolis estate planning attorney at Frank & Kraft explain what you can do to help prevent someone from contesting your Will.
What Does It Mean to Contest a Will?
Your estate will likely go through the legal process known as “probate” after your death. Ultimately, probate results in the distribution of a decedent’s estate assets; however, another function of the probate process is litigating any challenges to the decedent’s Will. If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid, and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets. After going to trouble of executing a Will, no one wants the terms of that Will to effectively be ignored after they are gone.
Grounds for Contesting a Will in Indiana
Contrary to what many people believe, a Will cannot be challenged based solely on the fact that a beneficiary isn’t happy with the inheritance they received (or didn’t receive) according to the terms of the Will. To succeed in a Will contest in the State of Indiana, a contestant must prove at least one of the following legal grounds on which the Will can be declared invalid:
- Lack of testamentary capacity
- Undue influence
- Fraud
- Improper execution
Steps You Can Take to Prevent a Will Contest
Although you cannot guarantee that your Will won’t be contested, there are some steps you can take that will make a successful Will contest less likely, such as:
- Do not use a DIY Will form. The DIY route may sound like a great way to save time and money when creating your Will; however, DIY legal documents are typically riddled with ambiguities and errors, making litigation more likely down the road. Working with an experienced attorney gives you the benefit of professional advice and oversight as well as providing another disinterested witness who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
- Convert assets to non-probate assets. Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Get a checkup just prior to executing your Will. “Lack of testamentary capacity” is a common basis for a Will contest. A good tactic for heading off such a claim is to get a complete physical done within days of executing your Will.
- Leave behind a Letter of Instruction. This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary regarding how they approach no contest clauses. In the State of Indiana, Indiana Code § 29-1-6-2 and Indiana Code § 30-4-2.1-3 do allow for the enforcement of a no contest clause.
Contact Indianapolis Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about what you can do to prevent a Will contest, contact the experienced Indianapolis estate planning attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law firms in Indiana in the area of estate planning as well as business and tax planning.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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