Estate Planning Tips to Avoid a Will Contest When You Die
When you invest time and effort into creating a Will that expresses your wishes upon death, the last thing you expect is for someone to dispute the validity of that document. Fortunately, you can protect your legacy and discourage a Will contest by including the proper language. Typically, such a clause would impose a penalty upon interested individuals if they take legal action to have the Will declared null and void. Under Michigan’s Will contest statute, these provisions are enforceable unless probable cause exists to have the Will set aside.
As such, your objective in avoiding a Will contest is to include the necessary terms and exclude any circumstances that could lead to probable cause. You should discuss your options with an experienced Michigan estate planning attorney who can handle the essential details, but be aware of a few ways you can ensure your intentions stay intact.
By law, your Will is only valid if:
- It is in writing;
- The document was signed by you or you directed another person to mark it in your presence;
- Two witnesses observed you signing the Will, after which they also signed it; and,
- You had sufficient mental capacity to make a Will.
The absence of any of these factors could make your Will invalid, in which case a person could have grounds to contest it.
Besides the requirements mentioned above, a no-contest clause is unenforceable if there is probable cause to initiate legal proceedings about its validity. Someone can lawfully contest your Will – and avoid the penalty – if there are questions about the circumstances surrounding the execution. The most common grounds are that you were under duress or undue influence played a role, so you need to exclude these factors when signing.
A best practice to disprove probable cause factors is by detailing the reasons for your specific decisions. By explaining your decisions, it is more likely that the court will decline to find probable cause to enforce the Will contest language. There may be certain individuals you intend to exclude from your estate, and you can name them as the motivation behind including a no-contest provision in the Will.
It is important to remember that all Wills, regardless of their provisions, go through the probate court. As such, all Wills and their administration become part of the public record for anyone to be able to access, not just your heirs. To ensure your estate plan stays private, a trust-based estate plan is the optimal choice. A revocable Trust allows for more control and protections over the distribution of your estate without the need for court involvement.
To learn more about how a revocable Trust can safeguard your legacy, please call our office. Our attorneys at the Nawrocki Center for Elder Law can advise you on your estate planning options. Please call 810-893-5277 or visit our website to set up a consultation with a member of our team.