Yes, it is possible to contest a will or trust, based on validity, interpretation, or administration. However, though relations or friends may feel anger or disappointment about the plans made by a loved one who has died, these feelings are insufficient for mounting a legal challenge to the plan. Read on to understand the grounds for challenging the arrangements made in a will or trust, and advice for avoiding potential challenges.
Legally Enforceable: Wills and Trust
Wills and trusts are legally enforceable documents: courts do not accept frivolous claims aimed at modifications, and not just anyone can randomly attempt to bring a claim. As Varak Law explains, to challenge an estate plan:
A person must have what is called “standing,” or the legal right to challenge an estate planning document. A person who receives property from the decedent, and was designated in their will as a beneficiary, may file a written opposition to the probate of the will at any time before the hearing of the petition for probate. An “interested person” may also challenge the will, including an heir, child, spouse, creditor, settlor, beneficiary, or any person who has a legal property right in or a claim against the estate of the decedent. Wills and trusts can be challenged by making a claim that the person lacked mental capacity to make the document. If they were sick or so impaired that they did not know what they were signing, or they did not fully understand the contents of the documents, they may be considered incapacitated, and the will or trust may be successfully challenged.
If there are grounds for making a challenge to a will or trust, probate litigation will unfold, and is likely to be costly and drag on over months or years, and, ultimately to deepen simmering family conflicts. In the event a conflict related to an estate seems to be escalating, the timely help of an attorney can curtail the need for court intervention. For example, disputes can be resolved via a negotiation or mediation process that results in a family settlement agreement. These kinds of remedies are generally swifter, less costly and less damaging for families than court proceedings.
Of course, the best solution for avoiding the pain, time, and costs associated with probate litigation is thoughtful, proactive estate planning. Courageous conversation with loved ones is especially essential when decisions about assets are likely to come as a surprise or cause stress. In fact, attorney Davis Schilken points out that most potential conflicts over estate plans can be prevented via honest communication, careful, expert guidance, and documentation: “Clear communication can go a long way in preventing misunderstandings and disputes. Let your loved ones know the broad strokes of your plan, especially if you’re making choices that could be perceived as unusual or controversial (e.g., unequal distributions among children). When beneficiaries understand your reasoning, they’re less likely to contest your decisions.”
Good To Do: Power of Attorney
Unfortunately, scams, fraud and undue influence are real and growing problems, and the elderly are disproportionately the victims. Putting a durable power of attorney in place, long before mental capacity becomes a concern, can help protect elderly loved ones from devastating acts that threaten assets:
Power of attorney is a powerful yet versatile estate planning tool that allows seniors (or anyone else, for that matter) to appoint another person (the “attorney-in-fact”) to handle their affairs in the event that they become incapacitated. A power of attorney is referred to as “durable” because the authority granted by it continues in effect even if the principal becomes incapacitated. Durable power of attorney can be an effective tool for preventing scams against seniors because it allows the principal to authorize another person to handle — or at least monitor — their financial affairs. For example, a power of attorney could authorize an attorney-in-fact to monitor a senior’s accounts, pay their bills, and step in if necessary to stop unusual transactions. While there’s nothing stopping a senior from voluntarily giving someone else access to their accounts, a durable power of attorney makes it official and ensures that the authority granted survives the senior’s incapacity.
Understanding Estate Bonds
When an estate plan is made, a trusted fiduciary is appointed to administer it. Depending on location and circumstance, this person may be specifically referred to as an executor, personal representative, or trustee. Because of the responsibilities involved in the role, an estate bond is frequently required. The purpose of an estate bond is to guarantee that debts and assets will be properly handled in accordance with the estate plan and the law.
An estate bond is sometimes alternatively named based on the specific role of the fiduciary. For example, an estate bond may be referred to as a trustee, executor, personal representative, guardianship or conservator bond. Colonial Surety Company makes it quick and easy to obtain estate bonds of all kinds. A user-friendly online service allows you to quote and obtain a bond that is instantly available to download or e-file. Fiduciaries in every state can efficiently obtain their estate bonds here:
Estate planning attorneys can help clients secure court and fiduciary bonds with a few clicks on The Partnership Account® for Attorneys. Just select the bond needed, send it to your client for payment, and then download, e-file or print the bond. Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Court bonds include: appeal, supersedeas, injunctions, replevin, receiver and more.
Colonial Surety is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA. Our customers have awarded us a 4.8 Trustpilot score. Whenever and wherever you need a bond, trust Colonial: www.colonialsurety.com