How to prevent a will from being contested after your death
When you create a will as part of an estate plan, the purpose behind it is to ensure that your last wishes are carried out per your instructions. Unfortunately, if someone decides to contest your will after your death, even the best estate planning won’t stop disgruntled family members or other “hangers-on” from trying to get their share of your will or estate. The good news is that there are steps you can take to help make your will foolproof and prevent this from happening to your estate.
To prevent a will from being contested, the first thing to consider is adding a “no-contest” clause to your will as a deterrent. A no-contest clause, also known as an in terrorem provision, is a provision that you can include in your will stating that, if anyone files a lawsuit to contest your will, the person challenging will receive nothing from your estate. However, no-contest provisions aren’t always allowed. In Florida and Indiana they’re unenforceable; in some courts, states may refuse to enforce a provision under certain circumstances.
What you can’t do
Sadly, even though there are other options to prevent a will from being contested, you can’t prevent greedy beneficiaries, siblings, or other family members from disputing the instructions that you left in your will for the distribution of your assets.
Changes in family dynamics are a common cause of in-fighting that leads to inheritance disputes and contested wills. Second marriages, stepchildren, and estrangement between relatives can cause problems between those who were included in a decedent’s will and those who feel they should have been.
What you can do
Besides adding a no-contest clause in your will, there are other options you can take to prevent the contesting of a will:
- Include a statement of intent about your estate plan to demonstrate your intentions
- Establish a “litigation holdback fund”
- Create a separate trust for a contentious beneficiary
- Provide video documentation of the execution of the will and have a third party certify its authenticity
- Require mediation for disputes
- Authorize your personal representative to pay costs of a potential contest
To prevent a will contest, consider creating a living trust instead of a will. A living trust does not pass through the court for probate and, in most cases, cannot be contested. Additionally, living trusts are documents for all phases of your adult life because you stay in control of your assets.