As an estate planning attorney, one of my primary concerns is to help my clients avoid the possibility of a Will contest. It can take a family generations to recover from the damage to family relationships that can occur in a Will contest or other type of litigated estate matter. The cost of having documents properly prepared and executed is a small matter compared to the cost of a will contest or other litigated probate matter. Below are a few additional tips for avoiding a fight over your estate.
- Assets should be correctly titled. Sometimes a parent adds an adult child’s name to a bank account so the child can help with check writing. Making another person an “authorized signer” is not the same as making that person a joint owner. If the intention is not clearly stated at the bank, they can end up with the child added to the account as a joint owner with rights of survivorship. Joint ownership means that the account does not pass under the Will but instead passes to the surviving joint owner. This can unintentionally wreck a plan for everything to pass equally to children under the Will.
- Will should be properly executed. The signing of the Will must be done correctly or the Will is not valid. Make sure your Will has at least 2 witnesses who are adults and are not related to you. The witnesses and the person signing the Will must be in the same room together when they sign. It is best for the signing to be supervised by an attorney or at least at the attorney’s office.
- Person signing the Will must have mental capacity to sign. In order for a Will to be valid the person making the Will must have “testamentary capacity.” They must be age 18 or older, they must know who their family members are and what property they have to dispose of by their Will. The mental capacity required to sign a Will is fairly low. If there may be a question about mental capacity, it may help to visit a doctor who can document the person’s mental status on the same day as the Will signing. This type of documentation could be helpful if it is later necessary to prove that person had sufficient mental capacity when they signed their Will.
It is always better to have a Will prepared by an estate planning attorney. Using do-it-yourself forms off the internet may seem like the low cost alternative but if it leads to a Will contest, the cost is very high.