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Wednesday, November 23, 2016

Tips for Avoiding a Will Contest

How can I prevent my will from being contested?

For those who have a will in place, it is possible for family members to dispute your instructions in which case the probate court may ultimately decided how your assets will be distributed. There are a number of steps you can take to prevent a will contest after your death, however.

Reasons for a Will Contest

There are a number of claims on which a will contest can be based. The first is that the will was not properly executed. Generally, the document  must be signed by the person making it (the "testator") along with two witnesses. While it is not necessary to notarize the will, Florida probate law has a provision for "self-proven wills" which can simplify the probate process. This requires the testator and the witnesses to sign a an affidavit of authenticity before a notary.

Other reasons for will contest include:

  • The testator lacked the mental capacity
  • The will was made under undue influence
  • The executor is incompetent
  • An act of fraud

How to Avoid a Will Contest

While many may be tempted to write their own will by downloading a form from the internet, this could be a costly short cut. The best way to avoid a will contest is to engage the services of an experienced estate planning attorney who can review, or better yet, draft your will.

Moreover, some individuals put off writing a will until it's too late. It is crucial to plan your estate while you're healthy. If you wait until your physical or mental health is declining, a will faces the potential of claims that it is invalid due to incapacity. There are also a number of ways to demonstrate that you are of sound mind and body at the time you are making a will. For example, a physician can perform a physical exam and attest that you are mentally competent.

Further, to avoid claims of undue influence, it is important to prepare your will without the influence or interference of loves ones or other beneficiaries. Beneficiaries should not take part in discussions with your attorney and certainly not act as witnesses to the will.

It is equally important that the person you choose to be executor is capable and trustworthy, and will not cause disagreements among the family members and other beneficiaries. Lastly, it is important to keep you will updated as your financial and life circumstances change.

The Takeaway

Will contests can lead to undue emotional burdens for surviving family members and impede your wishes from being carried out. Therefore it is essential to work with an attorney who can help ensure the validity of your will. In addition, he or she can advise you about a number of estate planning tools, such as trusts, that can help to prevent unnecessary disputes.


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