Will your heirs go to war over what you leave them – or, more likely, what you do not leave them?
It is not so far-fetched to compare inheritance disputes to war: Both are long, expensive, and vicious. An actual war destroys bodies and buildings; an inheritance war destroys relationships, pitting once-close siblings against each other or reawakening old feuds between other relatives. As Vladimir Putin’s war on Ukraine rages, we cannot escape the reminder of heirs who decide to wage war on their deceased loved one’s legacy and try to grab what they want – not because they deserve it but because they just want it.
Knowing that your legacy could be the prize in an inheritance war, the time for a pre-emptive strike against these ungrateful invaders is now. Work with your estate planning attorney to come up with a battle plan that will keep the peace. You cannot heal bad relationships between your heirs, but you can make sure they do not use your estate as one of their weapons.
First, it helps to understand what your future opponents may have in their arsenal. They will probably use at least one of the four most common legal grounds for challenging an estate plan:
Undue influence: Someone coerced or threatened you to get you to leave them a larger share.
Incompetence. You were not “of sound mind” or did not understand what you were signing.
Fraud. Someone lied to you to affect your decisions, or you were misrepresenting some aspect of the Will.
Unclear language: The meaning of a provision is unclear or can be interpreted in different ways.
A good estate attorney will provide several important services before you die to ensure your wishes are carried out after you die:
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- Drafting a Last Will and Testament (the “Will”) that is practically challenge-proof.
- Appointing the right Personal Representatives and Trustees, who will work for your estate’s interests and no one else’s.
- Clearly informing your heirs of your wishes, leaving no doubt as to what your wishes are and ensuring they will be carried out. This will give everyone the opportunity to ask questions and understand your intentions. After all, not all inheritance disputes come from a malicious place; often, the survivors just do not understand the wishes of the deceased.
- Heading off any claims of incompetence based on physical or mental illness before your death. If you are incapacitated, it may be too late to create your Will or Trust. Few attorneys will take on the liability of knowing they drafted a Will for someone that did not fully understand what they were signing. SO, THE TIME TO ACT IS WHILE YOU ARE STILL IN GOOD HEALTH!
- Including a no-contest clause in your Will, which states that any heir may forfeit their inheritance if they challenge the Will. Such a clause is not often enforceable but a great deterrent to anyone who may want to challenge a Will.
- Drafting a Last Will and Testament (the “Will”) that is practically challenge-proof.
Your attorney will advise you of a number of steps you can take yourself now, to prevent an inheritance war from breaking out or at least minimizing the future damage.
Give it away now: Laws vary by state, but you may be able to give your heirs some or all their inheritance now. Laws allow a certain amount of money to be given as a gift, which is exempt from taxes. The added benefit is they cannot fight over it after you die. If they fight now, at least you will be around to settle it.)
Set up a Revocable Trust: This lays out exactly how you want your estate distributed after you die. It can be revised at any time up to your death, as long as you have full mental capacity.
Set up joint accounts. If your property is in your name and your heir’s name when you die, it will pass directly to the her after you die. Be sure you trust the other account holder not to use the assets before you die, of course.
Label tangible items. Go through your possessions and attach labels to each object that you plan to have distributed after death. Florida law also allows for a Memorandum to be attached at the end of your Will or Trust where you can hand-write in the tangible personal items you wish to leave and to whom.
Leave a Letter of Instruction: Specify your wishes in a letter to be included in your estate papers. This is not legally binding, but it is an important guide to your wishes.
So, what is your battle plan? A few simple strategies now will protect your heirs from marauders. Contact OC Estate & Elder Law at (954) 251-0332 or info@ocestatelawyers.com to get started with a free phone consultation. Our attorneys are fluent in English, Spanish, and Russian.
