Thinking about what happens to your family and estate after you die can be difficult, but it is important to take proactive steps to protect both. This means considering various factors, including the possibility that your will or estate plan could be contested. However, you can take steps during the planning process to prevent this from occurring. The Texas estate planning and probate lawyers from MehaffyWeber can walk you through your options and create a sound plan.
Ensure Your Will is Valid and You Choose Trustworthy Fiduciaries
According to Texas Estate Code Sections 55,001 and 55.002, an eligible person is allowed to oppose a will in writing during the probate process. If the will or estate plan is contested, then this initiates a jury trial to settle the matter. To avoid this situation, it is important to ensure that a will is valid by ensuring it has been executed correctly. For a will to be executed (Texas Estates Code § 251.001), a person must be at least 18 years old, married, or an armed services personnel. For the will or estate plan to be valid (Texas Estates Code § 251.051), the individual filing the will (testator) must sign the document, as well as two witnesses who are at least 14 years of age. Witnesses must sign in the testator’s presence.
Additionally, choosing the right fiduciary to manage and execute your will is also essential during estate planning. Choosing someone you trust to represent you can also make a difference in preventing disputes and other legal issues during probate. The person you choose should protect your best interests after you are gone and take additional necessary steps to prevent contests to your will and estate plan.
Review and Update Your Will Periodically
Along this vein, you should also review and update your will regularly, especially when major life events occur. For example, if you get divorced and remarried but forget to remove your previous spouse and add your new spouse to your will, then the prior spouse is considered the recipient because they are listed in a valid will. This could lead to a contest during probate. By making periodic updates, you can avoid situations like these.
Talk With Heirs and Beneficiaries About Your Estate Plan and Will
A common factor that contributes to contested wills and estate plans is a lack of communication. Failing to talk to your family, heirs, and beneficiaries about your estate plan can backfire down the road and cause unwelcome surprises and conflicts. This can be particularly problematic if executors or other parties assigned responsibilities in the will are unaware of their roles in the event of your incapacitation or death. As such, conflicts or delays can arise that can affect probate proceedings. This can be prevented by setting up time to talk with parties affected by your will and estate plan. Walk them through what you have decided, who has responsibilities, why your will has been set up the way it has been, and any other relevant information that should be shared.
Proactively Combat Potential Claims of Incapacity and Undue Influence
Wills and estate plans are often contested on the grounds that the testator did not have the capacity to execute a valid will or that they were subject to undue influence. This can lead to serious conflicts during probate, which in turn can significantly draw out legal proceedings. To circumvent these issues, ensure that wills are created with witnesses and transparent proceedings. An individual can work with a lawyer to draft and sign a notarized affidavit to “self-prove” the will. Medical documents can also be used to reinforce that the testator was of sound mind and created their estate plan of their own free will.
Consider Adding a No-Contest Clause in Your Will
If you are concerned that your will may be contested or that there may be significant conflict among beneficiaries occurring after your death, you can include a no-contest clause within your will. A no-contest clause in a will is a provision that states that if an heir or beneficiary contests a will and loses their case, they also lose the right to any assets they were entitled to receive according to the will. While it does not prevent an heir or beneficiary from contesting a will, it can significantly discourage it and reduce the risk of conflicts during the execution of the will. By potentially preventing contests to the will or estate plan, it can also streamline the overall process.
Work With an Experienced Lawyer to Plan Your Estate and Draft Your Will
Every person’s estate is different, as well as the dynamics and circumstances that surround their family. This means that a cookie-cutter approach should not be taken when it comes to drafting your will or overall estate plan. Hiring and working with a lawyer can be highly beneficial in preventing legal issues and disputes later down the line. Lawyers can help you customize your estate plan to your particular needs and those of your family. They can also help you think through various considerations that could impact probate and your family, and take appropriate steps to minimize as many issues as possible.
Based on your situation, a lawyer can provide counsel and make recommendations to help you make informed decisions about how you want your estate handled after you are gone. Grieving and navigating probate can be a stressful time for families, and legal representation during estate planning helps you make the process as smooth as possible for them.
Consult MehaffyWeber About Your Will and Estate Plan Today
MehaffyWeber can help you draft your will and estate plan, as well as help you understand your options for preventing potential conflicts during probate. We understand the stress that creating a will or estate plan can place on a family, no more so than during probate, and our experienced team takes steps to help you feel comfortable with the plans you have put in place. Contact us today to schedule a consultation.