Most people are aware of the fact that a last will is an estate planning document that can be utilized to facilitate postmortem asset transfers. In fact, it is the most commonly utilized estate planning device. If you were to create a last will, you would have to go through certain steps to make sure that it is legally valid. This is one of the reasons why you should work with an estate planning attorney if you decide that you would like to execute a last will.
Each state has somewhat different laws with regard to the requirements. We practice law in the state of Indiana. In our state, the person who is creating a will must have reached the legal age of adulthood. Plus, the individual in question must be in full control of his or her faculties. The person who creates a last will is called the testator. A last will must be signed by the testator, and two witnesses who watched the testator sign the will must also sign the document.
Unfortunately, sometimes seniors are forced into signing a will that really does not reflect their true wishes, and opportunists may use deception or fraud to get someone to sign a will. A will signed under these circumstances would not be valid if the underlying causes could be proven in a court of law. There can be no coercion, intimidation, or fraud involved in the creation of the last will.
Contesting a Will
We touched upon various different circumstances that surround the signing of a will that would make the document invalid. A will is admitted to probate after the passing of the testator. This is a legal process that takes place under the supervision of a court. Part of the court’s responsibility is to make sure that the will was validly constructed. As a result, if someone thought that the will did not reflect the true wishes of the decedent, this individual could contest the will during the probate process.
Contesting a will when there really is something amiss is going to be the right thing to do. However, there is another side to this equation that sometimes rears its ugly head. In many cases, there will be disgruntled parties who do not receive what they thought they were entitled to.
People who are in this position may want to contest a will for their own purposes, and they may be able to construct a narrative that could appear to have some validity. In the end, the matter could be drawn out in court for an extended period of time, and legal expenses can accumulate. Even if the court finds that the will was in fact valid, the struggle can be very stressful and costly.
Revocable Living Trusts
When you are planning your estate, you may be well aware of the fact that there are interested parties who are not going to be particularly happy with the decisions that you made. If you think about it objectively, you may come to the conclusion that there could be a person, or multiple people, who may want to contest your estate. Since contesting a will is a relatively simple and straightforward process because of the existence of probate, you may have concerns.
Under these circumstances, you could potentially establish a revocable living trust and convey the property that will comprise your estate into the trust. Assets in a living trust are distributed outside of probate, so the court is not inherently involved. It is possible to contest the terms of a trust through the initiation of a lawsuit, but it is complicated and expensive.
Plus, you can include a powerful disincentive. If you are going to leave an inheritance to a beneficiary that may not meet his or her expectations, you can include a no contest clause. This would disinherit the beneficiary entirely if he or she was to initiate a lawsuit challenging the terms of the trust.
Making it more difficult to challenge the estate is only one of the many benefits that you would gain if you were to use a revocable living trust as your primary asset transfer vehicle.
Schedule a Consultation
Estate planning is a multifaceted process, and there is a lot to take into consideration. Most people are surprised when they learn all the facts, and they are relieved, because they know that they would have made mistakes if they acted on their own.
If you would like to discuss your legacy with a licensed estate planning attorney, we are here to help. You can send us a message through our contact page or call us at 317-684-1100 to schedule a consultation.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.