Ways to avoid a will or trust contest
Mar 2017
There are a number of things you can do while you are alive and healthy to reduce the risk that someone will contest your will or your trust.
If you are disinheriting someone, state that in your estate planning documents. This shows your specific intent to disinherit, and takes away the potential argument that they were accidentally left out. Consider leaving something small to the person(s) you want to disinherit, and then include a provision that if anyone does contest your plan, they will lose everything they otherwise would have inherited. This provision gives that beneficiary an incentive not to contest, as a contest would risk them losing the amount, even if small, that they would otherwise inherit.
Let your loved ones know about your estate plan. Share the details of the plan with them if you are comfortable. If you are not comfortable doing so, at least let them know it exists, where to find the originals, and when it was last updated. If your beneficiaries are not all inheriting equally, you might want to share that with them ahead of time, or write a letter explaining why you did what you did in your estate plan. It’s best to inform those that you put in fiduciary roles, so they can be prepared to act and know where to find the information and documents they will need when the time comes.
Keep your plan up to date. Review it every few years, and if there are any changes in your family or the families of your beneficiaries, such as a divorce, disability, bankruptcy, lawsuits, etc., have your estate plan reviewed right away. When you complete your estate plan, do not plan to put it on the shelf and never look at it again. Often times circumstances change, family dynamics change, wishes change, financial stability changes, health changes, mental capacity changes and laws change. You get the idea. Some or all of these changes might need to be incorporated into your estate plan. An updated plan coordinated with your current estate planning goals and beneficiary designation forms may discourage challenges.
A trust is much more difficult to contest than a will. Unlike the will, a trust is not filed publicly with the court. A trust is not accessible to everyone for any purpose like a will is. In fact, a trustee does not even necessarily have to allow a trust beneficiary see the entire trust, depending on the language in the trust. Consider a trust instead of a will if privacy is a concern, and especially if someone might be disinherited or beneficiaries are not treated equally.
If you are considering disinheriting a loved one who has poor spending habits or has a disability and qualifies for federal or state funding, it’s not necessary to disinherit because of those factors. You can establish a trust so your beneficiary can inherit in a protected trust share, whereas someone else, or perhaps a professional trustee, is responsible for making distributions to the beneficiary. You might want a discretionary trust established, and the beneficiary will only receive distributions from the trust under the terms and conditions you establish.
Carissa Giebel is an estate planning attorney at Legacy Law Group LLC. She can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it., www.legacylawllc.com or (920) 560-4651.
