Will your death trigger a long, expensive and bitter inheritance war? Will your heirs battle over your estate -- claiming, for example, that they deserve a bigger share of the money, arguing over who is most qualified to serve as executor, or debating whether you were competent when you signed your will?
Unfortunately, for many of you, the answer is yes: Your heirs will literally spend a fortune contesting your will and litigating issues that may seem trivial. Often such battles are motivated not by questions of fairness and equity, or even financial gain, but by an irrational desire to resolve old sibling rivalries or perpetuate a family feud.
Fortunately, you can take precautions now -- and you should, especially if you recognize that some of your family members don't get along all that well -- to head off conflicts, prevent headaches and heartaches, minimize legal expenses, and avoid long delays. A good estate planner will advise you to take steps to prevent such conflicts, including the following:
· Properly draft an "air-tight" will that leaves little room for legal challenges.
(I vehemently disagree. When an estate goes to probate, the court freezes the assets for several months, which allows anyone to come forward and contest the Will. The contester doesn't need to hire a lawyer. To contest a Living Trust, a disgruntled heir needs to hire a lawyer and file a civil suit against each heir. Meanwhile, the trustee is free to distribute the assets to the beneficiaries immediately. Your estate is not tied up in lengthy litigation.)
· Appoint impartial, institutional and/or professional executors and trustees who will not be sucked into family feuds. (Not necessary when you have a Revocable Living Trust).
· Make your intentions clear, and explain your reasons for any unusual bequest or disinheritance, either in a letter to family members or in a family meeting -- before you die, of course -- so family members can ask questions now, and heirs can't argue post mortem over what you really meant. (This can easily be done in the minutes of the first meeting of your trustees).
· If you are sick or partly incapacitated, obtain a doctor's note attesting to your competence; have all family members witness your will; make a recording or videotape to provide evidence of your competence; etc. (Not necessary when you have a Living Trust).
Include a no-contest provision in your will. This states that an heir who contests the will forfeits his or her inheritance.
(Caution: it may prevent lawsuits, but it may also promote more resentment.)
(A no-contest provision can be used in trusts as well as in wills. It should say:
If any beneficiary under this will [trust] shall commence or participate in any proceedings to contest the validity of this will [trust] or assert a false claim against my estate, such beneficiary and his/her descendants shall be deemed to have predeceased me for purposes of administrating my estate.)
The Basis for Contesting a Will or Trust
The four most common legal grounds for
contesting a will or trust are the following:
· Undue influence. One child exerts undue influence on a parent
in order to take a bigger share of the estate. For example, a son
threatens to put his mother in a nursing home unless she leaves a
bigger share of the estate to him.
· Incompetence. If the person making the will or trust was
not of sound mind, or did not understand the meaning of the document,
then its validity is questionable.
· Fraud. If a person makes a will or trust based on lies or
deception, the document is invalid. For example, a daughter falsely
tells her parent that her brother is engaging in criminal activity.
· Ambiguous language. The meaning of a provision is unclear,
or it can be interpreted in different ways.
About the author
Alan G. Orlowsky, president of A. G. Orlowsky Ltd. in Northbrook,
Illinois, has been counseling people on estate planning for 25 years.
He previously worked for the IRS in its Estate and Gift Tax Division.
He also worked for the Deloitte & Touche accounting firm, and
he has taught taxation and accounting at Loyola University of Chicago,
School of Business.
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