One of the disadvantages to a will compared to a trust is that a will must go through the probate process. Family members and others with vested interests in the estate may challenge the will during probate.
By understanding the most common reasons a will gets challenged, you can prepare your estate plan to ensure a will contest does not prevent your wishes from being carried out. Below is a brief overview of the most common problems—and how you can avoid them:
There’s another will in place
It is somewhat common for people to write multiple wills over the course of their lifetimes. Confusion can arise if there are multiple drafts of a will and little or nothing to indicate which copy is the one the deceased intended to go into effect upon his or her death. The easiest way to resolve this issue is by dating all versions of your will and adding a clause that the latest copy automatically revokes all previous editions.
Lack of testamentary capacity
For a will to be legally valid, the person who wrote it must have “testamentary capacity” at the time of signing. Creators must have had the mental capacity to realize that what they were signing was indeed a last will and testament. This can be a challenge if the person has Alzheimer’s disease or dementia. Avoid this problem by creating your will while you are still in good health.
Undue influence present
In some cases, people challenge a will if they have reason to believe an outside party was influencing the testator when he or she drafted or signed the document. Proving the existence of undue influence is quite tricky. You can help prevent such challenges by only speaking to your attorney on your own or with your spouse. Limit the other people who attend these meetings with you.
Lack of witnesses or other elements
Wills must be signed in the presence of witnesses. Without those witnesses, a will could be more susceptible to challenges. Your will must include other written elements that address who will inherit your properties upon your death. A lack of these necessary elements in a will could lead to a challenge. Be thorough and make sure you meet these requirements to avoid these issues.
In general, you may avoid most of the complications that could lead to a will challenge by working with a skilled estate planning attorney.
Schedule Your Consultation with Our Experienced California Estate Planning Attorneys
Bartlett & Herrington, P.C. is a top estate planning law firm in California. Our attorneys help families set up living trusts, wills, power of attorneys, healthcare directives in Santa Barbara, Ventura and Montecito.
Schedule a planning session with our experienced attorneys today to learn how we can help you and your family: (805) 576-7693.