It is important to work with an estate planning attorney when you are asserting your final wishes because there are legal ramifications. In order for a will or trust to be valid, everything must be done correctly, and a layperson would have no reason to understand the laws.
Will Contests
When a will is used as an asset transfer vehicle, the testator will name an executor in the document to act as the estate administrator. The will would be admitted to probate, and the court would provide supervision during the administration process.
There is a proving of the will when probate is underway. The court examines the will to determine its validity, and if anyone wants to contest the will, they can make a case while the estate is in probate.
One of the grounds for a will contest is improper execution. In order for a will to be valid in Oklahoma, you have to sign it in front of two witnesses, and the witnesses must also sign the document.
It does not have to be notarized, but you can make it a self-proving will if you and the witnesses go to a notary.
To do this, you execute an affidavit that attests to your identity, and all parties confirm that they knew you were signing a will. When a will is self-proving, the court would not have to contact the witnesses, and this would speed up the process.
Another ground for a contest would be the incapacity of the grantor. Cognitive impairment is not uncommon among seniors, so these situations do arise from time to time.
If someone thinks that the testator was unduly coerced, they could come forward to contest the validity of the will. Fraud is another ground for a will contest.
Though it is possible to contest a will, the burden of proof is considerable.
Living Trust Contests
Some people think that it is not possible to challenge the terms of a living trust because the distributions are not subject to the probate process.
It is true that there is a built-in venue for a challenge to the terms of a will, but a living trust can be contested. A lawsuit could be filed, and the court would hear the case.
In addition to the fact that the administration process is not subject to probate organically, there are those that think that a living trust cannot be challenged because the grantor can include a no-contest clause.
A no-contest clause would automatically disinherit a beneficiary that challenges the terms. In spite of the existence of the clause, a beneficiary could forfeit their guaranteed inheritance and file a lawsuit seeking a larger share of the estate.
While a no-contest clause does not prevent a legal challenge, it acts as a powerful disincentive, because the disgruntled beneficiary would have something to lose.
Attend a Free Seminar!
We offer seminars on an ongoing basis in an effort to reach out to our neighbors. You can learn a lot if you attend one of these sessions, and they are offered on a complimentary basis.
While there is no charge, we ask that you register in advance so we can reserve your spot. The Oklahoma City seminar dates are posted on this page, and we have a separate schedule for our Tulsa estate planning seminars.
Need Help Now?
If you have reached the point where you are ready to work with an attorney to put an estate plan in place, we are here to help.
Each situation is different, and there is no one-size-fits-all plan that is right for everyone. Personalized attention is the key to a properly constructed estate plan, and this is what you will receive when you choose our firm.
You can schedule a consultation appointment at our Oklahoma City estate planning office if you call us at 405-843-6100, and the Tulsa location can be reached at 918-615-2700. To send us a message, fill out this form and we will contact you ASAP.
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