You might feel confident that you have a comprehensive Estate Plan that will protect your assets and your family if you become incapacitated or die, but how can you be certain? One way to ensure that your Estate Plan will withstand the unexpected is to have an attorney review it with certain potential challenges in mind. This review is a kind of stress test, much like what your doctor performs to make sure your heart is in good shape before you embark on a new exercise routine. By stress-testing your Estate Plan, you can identify weaknesses and fix them before it’s too late.
Potential Challenges to an Estate Plan
We all want to believe that our family members will happily abide by the terms of our Will and other documents if we should become incapacitated or die. After all, these documents reflect your wishes, so why wouldn’t they accept them for what they are? Unfortunately, we see exceptions to this all too often. To be fair, sometimes it’s not the fault of the family members at all, but rather a mistake in a document or an invalid term that causes a problem. Some potential issues include:
- Questions about your competency at the time a Will was drafted
- A family member who is surprised by their disinheritance
- Lack of compliance with state inheritance laws
- Named representatives or heirs who have passed away
- Unexpected choices for executors or guardians
- Hard feelings when divorce and remarriage have occurred
When you review your Will and Estate Plan with an attorney—whether that attorney created your original plan or not—you can update it to make sure all of your decisions are still valid, but you can also add some components that will strengthen it moving forward.
What Your Estate Plan Might Need to Stand Up to Challenges
You can’t foresee every angry relative and change in the law, but you can include some important elements in your estate plan to help protect it against disgruntled family members and legal challenges. Working with your attorney, you might choose to include:
- A Living Trust. Revocable Living Trusts are much more secure than Wills because they are not subject to state inheritance laws. When you name beneficiaries of assets in a Trust, the assets become theirs upon your passing without having to go through Probate court. If you have any money or property to pass on—even if it is currently in a retirement account or life insurance policy—a Trust could be a good way to ensure it goes where you want it to go without being challenged.
- Explanations for your decisions. Including reasons for decisions that might be surprising can help to avoid confusion and protest after you are gone. If you are choosing to disinherit a family member, include a written explanation for why you are doing so. Likewise, offering reasons for your choice of a guardian could help family members accept your decision. Even a general letter of explanation included in your Estate Plan can provide peace of mind to family members who might suspect undue influence or incompetence.
- Proof of competency. If you have been diagnosed with a brain injury or dementia, it might be a good idea to include a letter from a doctor or psychiatrist attesting to your competence at the time the documents were created and signed.
- A no-contest clause. This is one to discuss with your attorney, but you can include a forfeiture clause in your Will that says that an heir who contests the terms of a Will and loses will give up their right to inherit anything. If a judge decides that the person filing the contest did so in good faith and with just cause, however, they will not forfeit their rights.
The most important step you can take to test your Estate Plan is to review it with an attorney every few years. If your attorney thinks you need additional protections, they will help you execute them.
Are You Looking for an Estate Plan Review in Texarkana, TX?
If you are looking for someone to review your estate plan in Texas or Arkansas, you need to speak with an experienced estate planning attorney as soon as possible. Contact us online or call our Texarkana office directly at 903.223.5653. We also have offices in Tyler, Paris, Longview as well as Magnolia, Arkansas.