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Designing an Estate Plan That Stands Up to a Will Contest


It can be easy to think that will contests only involve families with major assets - after all, why go to the time and expense of contesting a will when you're just squabbling over old furniture or a house in need of repairs? However, the vast majority of probated estates fall far below the $5 million estate taxation mark, which means that many will contests involve less than multimillion-dollar estates.

While just about every will can be the subject of a legal contest, only about one percent of wills actually are - and there are some protective measures you can take to significantly minimize the risk that your last will and testament will ever be litigated. Read on to learn more about some of the most common reasons for will contests and how you can structure your own estate plan to avoid them

Common Causes of Will Contests

Wills that comply with some basic requirements are assumed to be valid until proven otherwise. Many of the grounds on which a will can be proven invalid are based on the statutory requirements, such as the following. 

Allegations of Undue Influence

To be valid under Texas law, a will must be entered into freely and without coercion. If one of your surviving family members suspects that another potential beneficiary improperly coerced you into leaving a larger share of assets to that person (or cutting out another family member from the will entirely), he or she may seek to have the will overturned. 

This is why it's so important that a will be witnessed by at least two uninterested parties who may later be able to testify as to whether you voluntarily chose and were satisfied with the distribution of assets your will provides. 

Diminished Mental Capacity

Most wills begin by stating the testator's name, followed by a brief qualifier - "being of sound mind." If your mental capacity is impaired by a sudden injury or illness or a long-term ailment like Alzheimer's disease, you can't legally consent to the terms of your will.

Most estate and probate attorneys will have a brief conversation with you or ask you some general questions before drafting your will. This process ensures that you know what year it is, why you're seeking legal advice, and what legal effect your executed will can have. 

Revocation of the Will or Existence of a Prior Will 

Many people have more than one will over the course of a long lifetime. The division of assets you decided on in your twenties or thirties isn't likely to still apply when you're in your fifties or sixties, so it's often easier to revoke the prior will and write a new one from scratch than to try to amend the old will to comport with your current wishes.   

However, if your new will goes missing or is invalidated after a will contest, your former will may come into play once again. This means that if you want to take a will out of the running entirely, you'll need to formally revoke it. 

Preventing a Will Contest 

Although many online software programs offer low-cost will preparation, going the DIY route can sometimes increase the risk that your will won't comport with all of Texas's requirements. Probating a contested will can be an expensive and time-consuming process, so seeking out will software in lieu of an attorney just to save a few bucks is often a penny-wise but pound-foolish decision. 

By taking steps to avoid the most common causes of will contests and consulting an experienced probate attorney to help you through the process, you'll be able to rest assured that your final wishes, as outlined in your will, will be fulfilled after your death. 

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