It used to be that when a person died and the will was read, it was the last word. The kids could rant about how unfair it is; the spouse could be indignant that restrictions were put on his or her bequest; the lawyer could revel in the control he or she would have over the Estate, not to mention the fees to be collected through the probate. But a testator could at least know that in the end, the Estate would be distributed exactly as set out in the will.
Like with all other areas of the law, litigation over wills, trusts, and conservatorships has skyrocketed in the past decade. Courts are far more likely these days to entertain questions over whether a person had the mental capacity and/or freedom of choice to make the gift in question. The “no-contest clause,” which is a provision that is designed to keep beneficiaries from suing over the will or trust by completely disinheriting them if they try, has actually increased the litigation. Now the courts are clogged with lawsuits over the question of whether a beneficiary has or has not contested the will or trust! And the standard no-contest clause has big loopholes in it.
If you want to leave your assets to a non-relative, especially one who helps you with your daily tasks, there are major obstacles to overcome. Gifts to a caregiver who is not a relative are automatically deemed to be fraudulently obtained, unless the caregiver can prove by clear and convincing evidence, and not by his or her own testimony, that he or she did not unduly influence the donor. Under the law, almost anyone who helps you, even if he or she is unpaid, can be classified as a caregiver.
If you have children from a prior marriage and you want to provide for your current spouse, you should begin laying a strong foundation as soon as possible. Lawsuits between a second spouse and adult stepchildren are by far the most common litigation encountered in Probate Court.
Once you put your estate plan into place, take actions to reaffirm it over time, and to document your reasons. Your attorney can help you make a plan that will stand up as your last word.
For more information, please contact us, please call 661-259-7930.