By Barry Zimmer on January 23rd, 2020 in Estate Planning
It can sometimes seem as though estate planning is a purely personal and confidential endeavor. This is one way that you can approach it, and many people take this route. However, there is something to be said for honest communication so that unpleasant surprises do not yield negative consequences after your passing.
That is a subject for a different blog post, but in this one, we will consider the matter of potential estate challenges. You should definitely keep this in mind if someone, or multiple people, that are close to probably will not be very happy with some of your estate planning choices.
Last Wills and Probate
A lot of people think that a last will is the right choice as an asset transfer vehicle because the postmortem distributions will be very simple, direct, and straightforward. In reality, this is a misconception.
When a last will is used, it must be admitted to probate after the passing of the testator. The executor that is named in the document, or a personal representative that is appointed by the court, would handle the estate administration tasks. Everything would be done under the supervision of the court in accordance with the laws of the state of Ohio.
There are some drawbacks that go along with probate that we have looked upon from time to time, and one of them is the window of opportunity that it presents for estate challenges. Anyone that wants to contest the validity of a last will can come forward during this process.
This is a necessary safeguard, because in rare instances, there can be legitimate contests, but they are few and far between. If you know that there are people that may be upset with your estate planning choices, they would have the ability to come forward during probate to issue a challenge.
Even if the court ultimately finds that their challenge is not valid, it would definitely slow down an already lengthy process. This can also generate considerable legal fees, and the outcome would be in question until the court makes a decision, so anything could happen.
No Contest Clause
One thing that you can do to proactively prepare for a potential estate challenge is to establish a living trust with a no contest clause. The first advantage is the simple fact that asset transfers from a trust to the beneficiaries would not be subject to probate. For this reason, the direct, open opportunity to present a challenge would not exist.
It would be possible for someone to file a lawsuit contesting the terms of the trust. However, if you have a no contest clause, it would allow for the automatic disinheritance of any beneficiary that files such a suit. This would act as a powerful disincentive, because they would be cut out entirely if the legal action was not decided in their favor.
Consider Communication
As you can see, you can use the optimal legal approach to make it difficult for someone to challenge the terms of your estate. This being stated, you could also rely on good old communication under certain circumstances to make your wishes known in advance.
In some cases, this simply would not be possible or appropriate, and this is understood. At the same time, if you explain the choices that you made in an honest manner to a family member, or multiple family members, the communication could circumvent hard feelings later on.
Download Our Free Worksheet
We have many different resources that you can access on this website, and they are all offered on a complimentary basis. One of them is our carefully prepared worksheet, and if you take the time to go through it, you will invariably come away with a more comprehensive understanding of the process.
To get your copy, visit our worksheet download page and follow the simple instructions.