5 ways to make a bulletproof will
In an ideal world, your final wishes would remain just that: final. But in reality, dissatisfied heirs might look for any opportunity to grab what they feel they deserve.
Now more than ever, it’s essential to make a will that’s as bulletproof as possible.
“People are living longer, and their lives are getting messier,” says Stephen Hartnett, associate director of education for the American Academy of Estate Planning Attorneys. There’s more time for a second marriage, more time for valuables to pile up, more time for the family tree to sprout some unfamiliar branches — all of which can cloud who gets what after you’re gone.
Here are five measures you can take to offset potential challenges to your will.
1. Insert a no-contest clause
A no-contest clause is a stipulation that discourages people from disputing your will. The idea is pretty straightforward: Anyone who challenges it and loses gets zilch.
No-contest clauses won’t disincentivize people who were already left out, as they have nothing to lose by challenging, Hartnett says. But it will make beneficiaries think twice before going after more than you bequeath them.
Although each state has its own system for dealing with no-contest clauses, they’re enforceable in all but two — Florida and Indiana — according to the American College of Trust and Estate Counsel.
2. Reinforce your wishes verbally
Creating your will can understandably feel like a private endeavor, but keeping it secret from loved ones might lead to unintended turmoil after your death.
“If you’re doing something dramatic, such as leaving out a natural heir, the shock may lead to questions over what you really intended,” says Kathleen Bilderback, a St. Louis-based attorney specializing in estate planning. People who are blindsided might suspect you omitted them by accident or were unduly influenced by someone else, such as a caregiver or spouse, she says.
Announcing your wishes to loved ones while you’re alive lets you explain your actions. This makes it clearer that your decisions are yours alone and makes them tougher to contest successfully, Hartnett says. It also gives people more time to come to terms with your wishes and can add context, he adds, which might help defuse any resentment.
3. Have a doctor verify your mental health
For a will to be valid, the person making it must be able to come to his or her own decisions. If disgruntled heirs can raise doubt about whether you were in your right mind, they could persuade a court to disregard your wishes, Bilderback says.
To eliminate this possibility, she strongly encourages older clients to include a doctor’s note that confirms their mental capacity with the will. Even those who don’t show red flags of cognitive decline should err on the side of caution.
4. Ditch the laptop and get a lawyer
Online will-preparation software can be cheap and convenient, but it's risky to take the speedy route with such a complex task.
“The internet is a terrible lawyer,” Bilderback warns. Keeping track of every state requirement for wills can be daunting without an attorney's help. If they don’t comply with current laws, online-prepared wills might fan the flames of an estate dispute rather than extinguish them, she says.
For instance, an online will that fails to include the state-mandated number of witnesses opens the door for challenges.
5. Create a living trust instead
Like a will, a living trust legally transfers your assets to specified beneficiaries. But unlike a will, a trust remains hidden from the public even after you die.
Because your will enters the public record once you’re gone, anyone can stroll into a probate court and peek at it, Hartnett says. A relative’s nosy friend could see how you distributed your assets and urge him or her to go after more, for example. But trusts aren't part of the public record and tend to attract less unwanted attention.
Hartnett also notes that the legal time frame to challenge a trust is typically shorter than it is for wills, although this varies by state. And a living trust includes instructions regarding your health care and finances if you’re in a vegetative state — something a will doesn’t account for, he says.
Talk with an estate-planning lawyer to learn more about whether a living trust is right for you, and whether it can replace your will or work with it. An attorney can also help explain how a trust or will fits with other beneficiary designations you’ve made, such as those in your life insurance.
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Alex Glenn is a staff writer at NerdWallet, a personal finance website. Email: aglenn@nerdwallet.com.
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