What happens to your estate after you’re no more? Everyone wants their assets to be distributed properly between their rightful heirs after their death, and creating a will can make this happen. Your estate planning documents ensure your belongings are handled according to your wishes.
However, surveys from 2022 show that 67% of Americans don’t have any estate planning documents. When a person dies without a will, that person is said to have died intestate.
But having a will isn’t enough; a will can be challenged or deemed invalid after your demise. So, before writing your will, you must learn how to make it beyond question. This article covers some ways to ensure your will goes your way.
1. Learn why wills are challenged
A will can be discarded because of many reasons, which include the following:
- If the testator was tricked into signing it
- If someone unduly influenced the testator
- If the testator lacked the mental capacity to write a will
- If the will wasn’t signed as per the specific laws of the state
- If the will doesn’t pass the probate procedure and is discarded
So, what does it mean when a will is probated after the testator’s demise? Every will goes through probate; in this legal system, a court evaluates your estate and determines your heirs. You can prevent this by creating a living trust since a trust doesn’t go through probate.
2. Know what makes a will valid
So, what makes a will legit? For instance, in the UK, they have the Wills Act of 1837. Section 9 of the Wills Act discusses a brief list of formalities you must fulfill to make your will valid. Some points in this Act are important for American testators too. A will becomes valid under these conditions:
- It’s signed by the testator.
- Two people at least witness the signature.
- The document should intentionally serve as a will.
3. Reveal your estate planning ideas
It’s better to inform your heirs of your intention to write a will to avoid the document being contested after you pass over. So, gather your loved ones before making a will and tell them how you plan to divide your belongings among them. Contesting a will becomes less likely when there are no surprises. When there’s no conflict, you can rest assured that your wishes will come true.
4. Get your will medically reviewed
Challenging a person’s mental capacity is a method to delegitimize a will; people can argue that you weren’t mentally fit to create one. So, if you expect questions about your mental capacity after your death, getting yourself medically reviewed is smarter. Legally, it’s called your testamentary capacity, and a qualified mental health practitioner can verify you’re mentally fit to create a Will. Once mental health professionals confirm you possess testamentary capacity, your will becomes stronger.
5. Make a video of your last wishes
You can make your will more reliable by videotaping yourself while discussing your will. It can be an act of you communicating your last wishes personally to your loved ones. You can clarify some questions your loved ones might have about the contents of your Will in a pre-recorded video.
6. Name the person you’re cutting out
You can cut someone out of your will, but you should avoid future problems by clarifying that person’s identity. Naming the person or people or people you are cutting out of your will can make probate easier and quicker. So, be clear about who receives nothing.
7. Get a Certificate of Independent Review
Someone may claim you were unduly influenced to bequeath some assets to a non-family member. You can refute this claim by getting a Certificate of Independent Review to confirm that you’ve left someone a portion of your assets without any undue influence, e.g., your nurse or caregiver.
8. Include a no-contest clause
Research shows that 0.5 to 3 percent of wills are contested in the United States. You should know what makes a will contestable to make yours beyond challenge. To be on the safe side, it’s smarter to add a no-contest clause in the will; if the challenger loses, they get nothing from your estate. This provision will discourage your heirs from challenging the contents of the will.
9. Don’t forget about digital accounts
Your digital assets, such as email and social accounts, are also part of your will. Not attending to this matter can make the probate process needlessly complex. So, nominate the person you need to control the digital assets you own right now. It’ll make it easier for your inheritors to go through probate.
10. Destroy a previously written will
Testators often update their wills and change them as per alternating circumstances. For instance, divorce or childbirth can compel you to update the contents of your will. Just remember there must not be an old version of the will. Thus, destroy all previous versions the first chance you get.
11. Keep your will stored safely
You don’t want someone stealing your will and tampering with its contents. So, keep your will safe; don’t tuck it under your pillow, but put it somewhere secure. Ensure the executor knows where this will is located and has the credentials to access it.
12. Make your will probate-friendly
Simply having a will doesn’t bypass probate; each will must undergo this validation process. However, a Testator can make probate easier and quicker by designating an executor and constantly updating your will to make it as legitimate as possible. Another method to quickly bypass probate is to create a living trust, as a trust doesn’t go through probate and, unlike a will, becomes active the moment it’s made. Also, while the contents of a Will become public, a trust stays private. And:
- Joint ownership of property lets the other person inherit without probate
- You can set up pay-on-death or transfer-on-death (POD/TOD) accounts to bypass probate
- Pensions, life insurance policies, and retirement accounts, e.g., IRAs and 401(k)s, don’t need a probate process either
It’s smart to write your will once you reach 40. This article mentions a few tips to help you ensure your will goes your way. By writing an iron-clad will, you’ll ensure your heirs receive their rightful share after your pass over. If you’re struggling to write a will, lawyering up can simplify the process. So ask for referrals or look for an estate planning lawyer online.