If you are going to use a will as your asset transfer vehicle, it will be admitted to probate. This is a legal process that takes place under the supervision of a court.
There is a proving of the will while probate is underway. The court will examine the document to determine if it is valid. If someone wants to contest the will, they can come forward to make their case.
Grounds for a Will Contest
A valid will in the state of Oklahoma must be signed in front of two witnesses. You must declare that the document is in fact a will, and the witnesses have to sign the will in front of you. An improperly executed will could be successfully contested.
Undue coercion can be another reason for a challenge. For example, someone that is providing care for an elder could threaten to withhold the assistance unless they receive a certain amount in the will.
Other grounds include fraud, intimidation, and the incapacitation of the testator. Incapacity is common among elders. People that are experiencing cognitive impairment can sometimes be easily manipulated.
Preventing a Will Contest
Clearly, you should make sure that your will is executed correctly in the first place. You could also videotape the signing to avoid any question that you knew exactly what you were doing at the time.
If your will is in place when you are still a relatively young adult, cognitive impairment would be very hard to prove. This would also apply to intimidation and undue coercion, because younger people are less vulnerable.
There is also the simple matter of the inheritance planning decisions that you make. It can be tempting to disinherit an ungrateful child, or to give them less than their siblings will receive. However, if this step will cause an ugly uproar, is it really worth it?
Living Trust With a No Contest Clause
Your will could be relatively simple to contest because the court would already be involved. The court is charged with the responsibility of determining the validity of your will. If your estate did not go through probate, the open window of opportunity for disgruntled parties would be closed.
You could use a revocable living trust as your asset transfer vehicle instead of a simple will. While you are living, you would be the trustee. As such, you would have total access to the assets that you convey into the trust.
When you are drawing up the trust declaration, you name a successor trustee to serve as the administrator after you are gone. Your heirs would be the beneficiaries.
You can include a no contest clause when you are drawing up the trust terms. This will trigger the disinheritance of any beneficiary that challenges the trust.
After your passing, the trustee will notify the beneficiaries about the terms of the trust. He or she will distribute your assets in accordance with your wishes. The probate court will not be involved, so there would be no built-in opportunity for will contests.
A person that wanted to contest the terms of a trust could file a lawsuit, but that would be risky, complicated, and expensive. When you use a living trust with a no contest clause, a challenge becomes far less likely.
Attend a Free Education Program!
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You can see the dates if you visit our events page, and if you decide to join us, follow the simple instructions to register.
Need Help Now?
If you have already learned enough to know it is time for you to work with an Oklahoma City estate planning lawyer to put a plan in place, our doors are open. You can send us a message through our contact page to request an appointment, and we can be reached by phone at 405-843-6100.
- What Happens to Assets When Creating a Trust? - February 27, 2017
- Are Living Wills Different from Regular Wills? - February 28, 2017
- Why Wills are Such a Common Estate Planning Tool? - March 1, 2017
