The word “probate” may not mean much to you if you’re young, but if you’re older and have assets, it can strike fear into your heart. Probate law is the section of law that deals with, among other things, how wills are handled in court after death. The literal meaning of probate is “to prove”. Probate courts make decisions about whether or not a will is accurate. If it isn’t, a complex series of laws decides how a deceased person’s estate is handled after death.
After working so hard to build a legacy for your family, you don’t want the probate courts to take control. How do your wishes get honored? You have to make a strong will. Here are five things you can do to improve the strength of your will.
Verify Your Mental Health
For a will to be valid, you have to make it while you still have a sound mind. One way that heirs challenge wills is by claiming that you weren’t mentally competent at the time it was last changed. The way that you overcome this is by verifying your mental health.
This isn’t done by getting a clean bill of health from a psychologist. Instead, it’s done through witnesses. When you sign a will, you need to have witnesses with you who will also need to sign and be willing to testify after your death that you were mentally sound at the time. In most states, two is sufficient. Witnesses should be:
- Young enough to outlive you.
- Are mentally competent.
- Will keep you or your executor up-to-date with their contact information.
- Are NOT beneficiaries within the will.
- Are NOT related to you.
If a witness is unable to be found after you die, it can delay probate proceedings or even cancel your will, so choose carefully. Your lawyer may consent to be a witness and give advice on who would be good in your case.
Your state may also have an option for a “self-proving affidavit” attached to your will. If your state allows this, your witnesses will not have to show up to probate to testify. The affidavit will need to be signed by you and your witnesses, as well as notarized. If this affidavit is presented with the will, probate will go much faster. However, not all states allow this and some states don’t require witnesses to show up at all.
In short, having good witnesses is the first step toward preventing a challenge to your will. They are the living proof that what’s in your will is your wish.
Ditch the Laptop & Get a Lawyer
There are a lot of do-it-yourself estate planning kits on the market now. For people with few assets, it might be worth it. However, if you have significant assets or property, minor children, a business, debt, or an unfriendly family, you don’t want to do it yourself. You need a good probate lawyer.
A probate lawyer will help you structure your estate so that your wishes are carried out after death, including your will and any trusts you have set up. Will paying for a probate lawyer lower the value of your estate? Yes, but it will also deliver peace of mind. There’s no going back after probate, so it’s worth spending a bit to get it right.
Your executor will need to know how to contact your probate lawyer in case there is any problem after your death. Be sure to give them this information in your will.
Insert a No-Contest Clause
If your family is likely to file a challenge to your will, whether because they like to fight or you have a controversial list of wishes, there is a clause you can put in that could make them think twice. This is a no-contest clause.
In essence, this clause says that if someone challenges your will then they will receive nothing. It seems like a great way to stop the fighting early. However, these clauses can be a double-edged sword. First, if your will is changed against your consent through fraud, it can make very hard to correct after you’re dead. However, some states do void a no-contest clause if the claimant can prove there is probable cause that something is incorrect.
The other danger is that if give a relative a small share or disinherit someone completely, then that relative has nothing to lose by filing a claim. You’ll have to give your cranky relatives enough so that they feel like they have something to lose if they challenge.
Reinforce Your Wishes Verbally
While it can seem like a nice surprise, or a family necessity, to leave your will a secret until death, it leaves room for suspicion. Telling your relatives your wishes before you die is a great way to reinforce your will.
Giving away parts of your estate through verbal gifts while you’re still alive is another excellent way to speed up or even avoid probate. In fact, you can use this to change your will before-the-fact. Wills are only valid after you’re dead, so if you’ve already given that part of your estate away then it’s no longer yours to give. That clause is nullified.
However, if you think you are dying and try to give away things verbally there are a tricky set of rules that can kick in. Your verbal gift might be considered invalid by the probate court. Therefore, if you do plan on giving verbal gifts then do it while you’re healthy. As you get older, stick with what’s in your will.
Create a Living Trust Instead
Living trusts are a stronger way to protect your estate than a will. In this setup, your estate is owned by a trust and used by you while you’re alive. You still retain control over all of your property. Upon your death, the manager of the trust is then responsible for distributing your estate and dissolving the trust. This completely bypasses probate court for those goods in most cases.
They are more expensive to set up than a will and are difficult to change, but they have much harder to contest after death. Also, even if you create a living trust, you will want to have a will to cover all property that isn’t covered by the trust. Your lawyer can help you through the options so you can make the right choices for your estate.
If you’re over the age of 40 and have a significant estate, or you’re over the age of 60, that’s the time to really start thinking about your estate plan. It doesn’t take that long or cost all that much to set up protections that preserve your wishes. Talk with your lawyer about these five tips to help preserve the legacy you want to pass on.