After creating an estate plan, you want asset distribution to your loved ones to go as smoothly as possible. Unfortunately, though, there’s a chance that your will, trust or other estate planning vehicles could be challenged in probate court by someone who believes you lacked the requisite testamentary capacity to create a legally valid estate plan. In other words, this individual might argue that you didn’t understand the nature and extent of your estate, as well as how your estate plan disposed of your assets.
An estate plan challenge can completely upend your vision of the future, too. Certain loved ones or important causes could end up ripped out of your estate distribution scheme, and your assets might fall into the hands of individuals that you don’t trust. That’s why it’s imperative that you know how to head off arguments about testamentary capacity early on in the estate planning process itself.
How can you avoid an estate challenge based on lack of mental capacity?
There are several steps that you can take here to protect your interests. This includes doing each of the following:
- Visiting your doctor before signing off on important estate planning documentation: By seeing your doctor, you can acquire their opinion as to your mental state close in time to your estate plan’s execution. That way if your estate plan is challenged, you’ll have an expert who can testify to your mental clarity in the days leading up to the signing of your estate plan documents.
- Having plenty of witnesses present during your estate plan execution: Most estate planning documents require a witness. But by taking the process more formally and having several witnesses physically present when you sign off on your estate plan gives you more people who can attest to your mental competency at the time your estate plan was finalized.
- Giving gifts ahead of time: If you already have an idea of who may try to challenge your estate plan, then you can work to block their arguments about testamentary capacity by giving them gifts outside of your estate plan. More likely than not, they’ll accept those gifts, which you can then use as evidence to show that they in fact did think that you had the requisite mental capacity to dispose of your assets as you saw fit.
- Using a no contest clause: Sometimes, it’s a good idea to put a clause in your estate plan that indicates that an unsuccessful challenge to the estate plan will cut the challenger out of the inheritance scheme altogether. This may be enough to dissuade a disgruntled relative from trying to defeat your estate plan in court.
- Utilizing a letter of intent: Although a letter of intent doesn’t have the legally binding effect of a will or a trust, it can provide sound justifications for why your estate plan has been laid out in a certain way. Again, this can be compelling evidence of your mental clarity at the time you generated your estate planning documentation.
The estate planning process is oftentimes more involved than people think, especially if you want to custom tailor it to truly suit your needs. That’s why you shouldn’t procrastinate in creating your estate plan. Instead, get to work now to build an effective and legally sound estate plan that protects your interests as well as the interests of those people and causes that you care about most.