There are only a few requirements for a will to be valid in terms of its drafting. It must be in writing and signed by the testator at the end. Technically, a notary and/or witnesses are not required, though certainly useful for purposes of probate as well as potential litigation on its validity. The bigger concerns surround the contents of the will. Any aggrieved party can contest the will for a number of reasons. Two of the more common grounds for a will contest include indue influence or lack of capacity. Undue influence covers a variety of situations where the primary allegation is the contents of the will do not reflect the testator’s true intent. This could be because of direct undue influence, i.e. physically forcing the testator to execute a will. It can also be a result of indirect influence. Indirect influence may be asserted if the testator was shown to have persistent confusion or forgetfulness, a party with a close relationship is involved, and the end result is a lopsided will to the substantial benefit of the party with close relationship.

 

Lack of capacity can be asserted wherein it is alleged the testator did not have the mental awareness to execute the document. By law, a testator must be of sound mind to make a will. This has been construed by case law to require they understand who their intended beneficiaries are, what property they have to pass to the beneficiaries, and how they will divide the property among the beneficiaries. There is a presumption of capacity but it can be overcome. To overcome the presumption there must be clear and convincing evidence to demonstrate lack of capacity at the time of signing. Witnesses at the time of signing can offer testimony with regard to the state of the testator at the time with respect to capacity. Consult with an estate attorney if you have concerns about the validity of a will to discuss your options.

It makes sense to revisit your estate plan after any major life change, including new child, marriage and divorce. You want to ensure you are leaving your assets to the individuals you intend to and that can change over time. Sometimes, individuals do not get around to updating their plan leaving their heirs to deal with the fallout. Luckily, in the case of divorce, there is some protection offered by law. Specifically, any provision in a will relating to the testator’s spouse will become ineffective upon divorce unless it is clear the provision was intended to remain post-divorce. The same is true if the testator is in the midst of divorce proceedings and grounds for divorce have been established. Establishment of grounds is by order of the court and requires more than just the filing/service of a divorce complaint.

 

The rule for wills is also applied to beneficiary designations. The law provides that any designation naming a prior spouse shall become ineffective upon divorce. However, a prior spouse would still be entitled to receive their share of the asset if awarded to them pursuant to equitable distribution, where applicable. Your estate plan may also be automatically modified in the event of marriage. If a testator marries after making a will, the surviving spouse shall at least be entitled to what they would have received without a will if they are not named. Intention is also a factor here. If the document notes the upcoming marriage, the law does not apply to change the will.

Disclaimers and renunciations are forms that can impact the administration of an estate. As is true with all legal paperwork, the best policy is to consult with an attorney before signing. If you elect not to consult with an attorney, at least be aware of the purpose of each form. A renunciation is used where an individual who has been named as an executor declines to serve in that capacity. You may name the individual who should serve in your place unless a contingent executor as already been named. In the case of an individual passing without a will, the next of kin would be first in line to serve as administrator of the estate. This individual can also sign a renunciation to waive their right to serve and allow someone else to serve. If there are issues with the person who stands to serve and a refusal to voluntary renounce their position, any other individuals with an interest in the estate can still petition the court to address their concerns.

A disclaimer is used to waive your right to receive an inheritance. Being named as a beneficiary or being an heir at law does not mean that you have to accept what is designated to go to you. It is possible to decline to receive your inheritance. The result of a disclaimer is that you are treated as if you predeceased the decedent. A will or the laws of intestacy would dictate how your share would be distributed among other beneficiaries. A valid disclaimer must be in writing. It must adequately identify the decedent and the asset or amount being disclaimed. It is possible to do a full disclaimer or a partial disclaimer where you only refuse certain assets or a certain amount. The disclaimer has to be served on the person handling the estate, such as the executor or administrator, and/or filed with the court. A disclaimer is irrevocable so be sure of your decision prior to executing the document.

Probate is the process wherein a decedent’s will is presented to the appropriate county office and the named executor is formally sworn in to handle their estate. Probate can also occur if a decedent passes without a will in which case their next of kin can apply to serve as the administrator of their estate. There are a number of steps to take and potential costs involved to complete administration of an estate once formally probated. Depending on the nature of assets and debts of the decedent, probate can sometimes be avoided. It is key to consult with an experienced estate attorney to see if this is possible.

A good estate plan can also eliminate the need for probate. An individual can make plans during their lifetime that may eliminate the need for any probate after their death. For example, they can funnel their assets into non-probate assets which include assets that have a beneficiary designation or payable on death designation. They may also consider titling assets with another individual as joint tenants with rights of survivorship. A trust may be a good fit such that assets are held in trust and not in the name of the individual, with instructions on how the trust should operate following the death of the person creating and funding the trust. Identifying a good estate plan is also very case specific and should be discussed with an experienced attorney as well as a financial planner and/or tax advisor.