How to avoid a Will contest

by: Sanford R. Altman, Esq., retired.
Jacobowitz & Gubits, LLP

Question:
My wife and I have an appointment with our lawyer to take care of our estate planning. While we only have a moderate amount of assets, we want to do whatever is possible to avoid our children’s fighting after we are gone. Any suggestions?

Answer:
First, let me congratulate you on taking the first big step – making the appointment to take care of your estate. As you may have noticed from many previous columns, advanced planning is the key to insuring that your assets end up where you want them and it’s usually less painful than most people think.

Over the years, I have seen many brutal family fights over estates both large and very small. Formerly loving brothers and sisters have had knock down drag out battles over such items as an old, worn out lawn tractor. Inexplicably, the death of a parent can bring out both the best and the worst in children.

There are several steps you may take to lessen the likelihood of family conflicts. The first concerns the worse kind – fights while you are still alive. Unless there is a compelling reason, I strongly advise my clients never to give their children a copy of their Will or Will substitutes such as Revocable Living Trust. I have found that, over the years, the children will always have something to say about it. Even if you are dividing everything up equally, you will hear, “But you promised me that I would get …” or even ” I don’t need anything from you, Mom. Give it to my brother.” Whenever a client calls me for a change in their Will or Trust a few weeks after it is signed, I know they have showed it to their children. The only thing you need to tell them is where the original is located or give them the business card of your lawyer who is holding it with instructions to contact the lawyer should you pass away.

As to the document itself, if it is your intent to give more to one child than another, it often lessens the sting if you explain why in the document itself. For example ” I give my house to Zeak because my other children have homes of their own” or “because he has lived with me and taken care of me for many years.” Such explanations can also make less likely a successful court challenge based upon undue influence from Zeak or your lack of mental capacity. Explanatory language may similarly help in the event you are disinheriting a child.

If it is your intent to distribute everything equally among your children, it is important to remember that your Will only controls those assets which are not otherwise distributed automatically at the time of your death. Therefore, if you have an account owned jointly with one of your children, or in Trust for one of your children or life insurance, IRA or an annuity naming one of your children, that child will receive that amount outside the will, even if your Will says that you want everything to be divided equally. I have often had cases where a parent has placed a child’s name as joint owner of bank accounts “for convenience”, so that the child can help pay bills and also access the account immediately upon the death of the parent (remember that a Power of Attorney dies with you). Sometimes the child will say, “I know Dad would have wanted me to divide it up between my brothers and sisters and that’s what I am going to do.” Others will simply say, “It’s mine and I am keeping it.” To avoid this, make them all beneficiaries where you can. If there are some reasons why it’s impractical, such as with a joint account, make provisions in your will to take that “extra gift ” into account when calculating everyone’s equal share.

Finally, if you anticipate that your Will may be contested you may consider a Revocable Living Trust to pass on your assets. This avoids the probate process in Court and takes away an available forum for such a contest. In addition, whether utilizing a Trust or a Will as your primary vehicle, a “no contest” clause is advisable which would deprive a challenger from receiving anything from your estate. When all is said and done, the prospect of “losing it all” seems the best deterrent to a Will contest.