Clients are often concerned about how family harmony will be maintained after they are gone. They worry that children will argue over their money and their possessions. Avoiding a contest over your Last Will and Testament when you are no longer here involves careful planning and execution. While it’s impossible to guarantee that a Last Will won’t be contested, there are steps you can take to minimize the likelihood of a successful challenge.
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Consult with a Professional:
- Seek advice from an experienced estate planning attorney. They can help you draft a legally sound Last Will that adheres to state laws and regulations.
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Use Clear and Concise Language:
- Use clear and unambiguous language in your Will. Be specific whenever possible. Avoid vague terms that could be open to interpretation. For example, “I leave all of my personal property to my daughter to determine what items will be given to her and my two other children.” This statement could leave too much discretion with the writer’s daughter and ambiguity about how the personal property should ultimately be distributed.
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The Last Will needs to be properly executed:
- In Massachusetts, a Last Will and Testament needs to be executed by the “testator” (creator of the Last Will) in the presence of two witnesses. Those two witnesses must be in the presence of each other and the testator when the Will is signed.
- The witnesses cannot be beneficiaries under your Last Will.
- Additionally, to make the Will “self-proving”, all three signatures should be signed in the presence of a Notary Public.
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You need to be competent to create a Last Will:
- Challenges to a Last Will are often made based on a question of competence. If there is a question of your competency level (such as a recent diagnosis of dementia) or there is an increased likelihood that a beneficiary or heir may contest your Last Will, your estate planning attorney may request that you provide a letter of competence from your health care provider.
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Update your Last Will regularly:
- Regularly review and update your Last Will to reflect any changes in your personal circumstances, such as marriages, divorces, births, or deaths.
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No Contest Clause:
- Consider adding a “No-Contest” clause Last Will. This clause will stipulate that beneficiaries who contest the Last Will and lose shall receive nothing.
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Communicate clearly:
- Discussing your decisions with your family members and heirs in advance, can help to prevent surprises and reduce the likelihood of disputes. Remember, discussion with them is not the same as asking their permission. You have the right to make whatever decision you believe is appropriate for your estate.
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Consider using a Trust:
- Utilizing a revocable trust to hold your assets is a good way to avoid a probate proceeding and reduce the possibility of arguing over the distribution of your estate.
A little extra attention now with respect to your Last Will and your overall estate plan can go a long way in maintaining family harmony after your death.
Founded by a nurse attorney and with offices in Acton, Sudbury, and Andover, Massachusetts, Generations Law Group helps families navigate the complex areas of estate planning and elder law to inform and protect loved ones of every generation.
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