For most people, the desire to control how their estate assets are distributed when they are gone is a primary motivating factor in the creation of an estate plan. If you are among them, you undoubtedly also want to avoid disputes that might arise during probate. Unfortunately, there is no iron-clad method of preventing estate disputes. As a Murfreesboro probate attorney at Bennett | Michael | Hornsby explains, however, there are things you can do to help prevent disputes over your estate during probate.
What Happens to Your Assets after Your Death: Understanding Probate
The estate you leave behind consists of everything you owned, or in which you had an ownership interest, at the time of your death. Eventually, all assets remaining in your estate will be transferred to the intended beneficiaries and/or legal heirs. The legal process by which this occurs is known as “probate.” If you leave behind a Last Will and Testament, that Will is submitted to the appropriate court and the terms of the Will are used to decide how your assets are distributed. If you used a trust to distribute assets, the trust does not go through probate. In that case, the terms of the trust agreement determine how assets are distributed.
Whether your estate is complex and valuable or simple and modest in value, there is always a risk of a probate dispute. If a dispute does occur, it will slow down the probate process. Even worse, the expenses involved in litigating probate disputes can significantly diminish the value of your estate. Ultimately, when an estate becomes involved in a dispute it increases the time beneficiaries must wait to receive an inheritance and decreases the value of the inheritance.
Tips for Preventing Probate Disputes
While there is no sure-fire way to prevent your beneficiaries and heirs from initiating litigation during the probate of your estate, the following tips can help reduce the likelihood:
- Choose your Executor wisely. The Executor of your Will is responsible for overseeing the probate of your estate. Before appointing a spouse, family member, or close friend to the position, take the time to decide if that person has the right skills and characteristics for the position. Ideally, your Executor should have some financial and/or legal experience, be good at conflict resolution, and be capable of fulfilling the role while also dealing with his/her grief.
- Head off claims that could invalidate your Will. A Will contest requires the contestant to use available legal grounds to prove that the Will is legally invalid. The most used of those legal grounds are “lack of testamentary capacity” and “undue influence.” To head off these claims:
- Have a full mental examination conducted by a geriatric psychiatrist or another qualified medical professional right before executing your Will.
- Go by yourself to meet with your estate planning lawyer when you discuss your estate plan.
- Execute your Will in front of your attorney and at least two disinterested witnesses.
- Try to avoid “deathbed” changes to your existing Will.
- Include a no-contest clause in your Will (or trust). A no-contest clause is essentially a forfeit provision that applies if a beneficiary challenges a Will or trust. It can discourage challenges because a beneficiary stands to lose a guaranteed inheritance. State law governs the enforcement of no-contest clauses in a Will or trust. Tennessee law enforces no-contest provisions unless a challenge is made in good faith and with probable cause.
- Explain decisions you made in a Letter of Instructions. Legally, you can distribute your estate any way you wish; however, some decisions are likely to cause conflict that leads to a dispute. When you know that the provisions of your Will are likely to be problematic, consider using a Letter of Instructions to explain why you made those decisions
- Do not use DIY estate planning documents. Always work with an experienced estate planning attorney when creating or updating your estate plan. DIY legal documents inevitably increase the likelihood of disputes because they are incomplete, contain legal errors, or fail to work together as intended.
Contact a Murfreesboro Probate Attorney
If you have additional questions or concerns regarding the probate of an estate, consult with an experienced Murfreesboro probate attorney at Bennett | Michael | Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your free appointment.
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