How to Avoid Challenges to Your Estate Plan After You're Gone by Brette Sember, J.D.

How to Avoid Challenges to Your Estate Plan After You're Gone

The best laid out estate plans may not hold up if a disgruntled relative decides to challenge them. Find out how to make your estate plan bulletproof.

by Brette Sember, J.D.
updated August 12, 2020 · 3 min read

No one likes to think about their loved ones fighting over their estate, but the truth is that even the best laid out estate plans may not hold up if a disgruntled relative decides to challenge them.

How to Avoid Challenges to Your Estate Plan After You're Gone

While you might think that you have no control over what happens after you're gone, estate planning lets you dictate what happens with your assets and belongings after you've passed. You want to be sure that you create a solid estate plan that anticipates family disputes and problems, though, because you do not want a jealous or petty relative disrupting your carefully laid plans.

Follow these tips to keep everyone in line.

Consider Gifts During Your Life

One of the best ways to make sure that your wishes are carried out is "Giving property away during one's lifetime, in a way that avoids claims of undue pressure," says Robert Zafft of Greensfelder, Hemker & Gale, P.C. in St. Louis, Missouri.

If there are specific, special things you want to give to certain people, go ahead and give it to them now. Yep, people might be upset with you, but it's your stuff, and you can do what you want to with it. It's also rewarding to actually see people receive the things you want them to have, rather than waiting until you're gone for them to receive them.

Talk About Your Wishes

Family members who feel blindsided, hurt, and rejected when they find out what's in your will (or who is not in your will) are more likely to channel those negative emotions into trying to challenge the will. "The best thing to do is to try to engage them in a conversation about your wishes and your reasons for structuring your estate as you did," says Alison Besunder, partner at Goetz Fitzpatrick LLP in New York, New York.

Talking about it now keeps it from being a surprise and gives everyone time to work through their expectations and come to understand your reasoning.

Talk to Your Executor

In addition to talking to your heirs, Besunder recommends you "make sure your nominated executor knows where to find your documents. Your Will can't be probated, and your trust can't be administrated if no one can find them."

He adds that this step is overlooked by many people. If your executor knows where the will is, this prevents it from mysteriously "disappearing" if an unhappy relative finds it first. It's also possible to place the will with the probate court for safekeeping in some states. That way, it can't be disappeared or destroyed.

Insert a No Challenge Provision

If you're concerned that family members might be upset and try to challenge your plans, consider "Inserting a clause in the Will that disinherits anyone who contests the Will," says Zafft.

This can be an important measure that will make anyone in your family think twice about trying to undo your carefully laid plans. It also shows them that you predicted they might try this and lets them know you've planned against it.

Use a Trust

To completely avoid probate and all the messy opportunities for challenges that can happen there, Zafft recommends "Transferring assets prior to death into a revocable trust that will, at death, become irrevocable and manage and distribute property outside of probate."

Using a living trust like this allows you to keep and use your assets during your life, but pass them to the people you select after your death. It doesn't go through probate, and the terms remain private.

Careful planning and preparation now will ensure that your wishes are carried out after you're gone.

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Brette Sember, J.D.

About the Author

Brette Sember, J.D.

Brette Sember, J.D. practiced law in New York, including divorce, mediation, family law, adoption, probate and estates, … Read more