Ideally, your estate plan should allow for the orderly distribution of your estate, according to your wishes, after your death. When everything goes as planned, the probate administration process can be an emotional, and time-consuming, process. When things don’t go as planned, probate can turn into a costly nightmare for everyone involved. Although there is no guaranteed method of avoiding probate litigation, the Riverside probate attorneys at Sandoval Legacy Group, A Professional Law Corporation offer tips for reducing the likelihood of disputes over your estate.
Probate Basics
The estate you leave behind after your death will consist of everything you owned, or in which you had an ownership interest, at the time of your death. Ultimately, all of those estate assets need to be transferred to the intended beneficiaries and/or legal heirs of the estate. Before that can happen, however, your estate must go through the legal process known as probate. During probate, creditors of the estate are notified and afforded an opportunity to file claims against the estate. Federal and/or state income taxes, gift taxes and estate taxes must be calculated and paid, if owed. In addition, any challenges to the validity of your Last Will and Testament will be litigated during the probate of your estate.
What You Can Do to Prevent Disputes
When disputes erupt during the probate of an estate, it typically increased both the cost of probating the estate and the length of time required to conclude the probate process. Consequently, a dispute could mean a decrease in the value of the estate passed down to your loved ones and a much longer wait before they receive the assets that are passed down. To prevent such unwanted results, the following tips may help reduce the likelihood of a dispute during the probate of your estate:
- Do not try the DIY route. In today’s internet age it may seem like using a fill-in-the-blank online Will form is a good way to save money; however, in the long run the DIY route dramatically increase the likelihood of litigation when it comes time to probate your estate. Working with an experienced estate planning attorney ensures that everything is done correctly and offers the best defense against disputes.
- Choose your Executor wisely. All too often the creator of the Will, known as the Testator, appoints a spouse, family member, or close friend as Executor without stopping to think if that person is really the best person for the job. The wrong Executor encourages challenges whereas the right Executor will deter those same challenges. Choose someone who will be able to handle the job while still grieving and who has some legal experience, if possible.
- Include a no-contest clause in your Will. A no-contest clause effectively penalizes a beneficiary for contesting your Will. For a no-contest clause to be effective the beneficiary must be awarded something in your Will that he/she stands to lose by pursuing a Will contest. California has several laws that must be followed in order for a no contest clause to be work properly.
- Explain choices that are likely to raise questions. You have an absolute right to distribute your estate anyway you see fit; however, if you completely disinherit a child or give your entire estate to charity, for example, you can almost count on challenges by loved ones as they have nothing to lose. If you know that choices you made in your Will are likely to be unpopular or raise questions, explain those choices. You can do this prior to your death by sitting down and talking directly to your loved ones or you can use write a letters or letters explaining your reasons why you make your choices and include it with your Will. This letter can be extremely beneficial if litigation is brought after your death.
- Set the stage before executing your Will. Contrary to popular belief, a Will contest cannot be founded on an heir being unhappy about his/her inheritance (or lack thereof). To contest a file a contestant must allege (and ultimately prove to be successful) that the Will is legally invalid. The most common grounds on which a Will can be challenged are to claim that the Testator lacked testamentary capacity or to claim undue influence. To discourage these claims, have a full mental examination conducted by a geriatric psychiatrist or other qualified medical professional done shortly before or after executing your Will. Meet with your estate planning lawyer, by yourself, to discuss your wishes. Execute your Will in front of your attorney and at least two disinterested witnesses. In some circumstances, it is a good idea to meet with a second estate planning attorney to have him review your Will, discuss your wishes with you, and prepare a Certificate of Independent Review. Finally, do not make last minute changes to your Will.
Contact Riverside Estate Planning Attorneys
If you have additional questions or concerns regarding probate disputes, contact the experienced Riverside estate planning and probate lawyers at Sandoval Legacy Group, A Professional Law Corporation by calling (951) 888-1460 to schedule an appointment.
Have a question? Ask Dennis.
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