Take These Steps Now to Avoid Probate Challenges Later

When you create an estate plan, the last thing you want to worry about is your loved ones fighting with each other over what you wanted to happen, over what you meant to say or do in your will, or whether you were capable and competent to create the will or estate document in the first place.

Probate court fights can be costly, litigious, drawn out, and bitter. And while you can’t guarantee nobody will challenge anything or fight over anything, there are steps you can take to minimize the risk of fighting, or at least, to deter people from filing any challenges to your will in the probate court.

Using Letters of Instruction

You are allowed to leave a letter of instruction in your estate documents. A letter of instruction, by itself, doesn’t leave any property to anybody. What it does do, however, is explain the reasoning behind the decisions made in your will or other estate documents.

The reasoning can go a long way to avoiding probate court challenges, because it tells your beneficiaries (and ultimately a probate court) that you knew what you were doing, that your decisions were thought out, and that you rationally considered the choices that you made.

Use Vehicles That Avoid Probate

One way to avoid probate challenges is to avoid probate altogether. You can structure certain assets to pass to people outside of probate court. As a general rule, anything that takes effect immediately on your passing, by operation of law, avoids probate.

This may include payable on death accounts, or real estate that is jointly titled. Any assets with an already named beneficiary, such as life insurance, will not pass through probate.

You can also opt to gift property to people while you are still alive, which would otherwise pass through probate. The law allows you to gift certain property in certain amounts, to avoid taxes and avoid any other penalties. Again, by avoiding probate, you’re avoiding disputes later on.

Start Early

While youth is no guarantee of health, the fact is that the younger we are, the more people assume that we are mentally competent, and thus, the less likely anybody is to think that you were a victim of coercion, duress, undue influence, or that you were ill or suffering from some mental infirmity at the time you created your will. That means you may want to get your will completed earlier, rather than later.

If you are concerned—say, for example, you have been diagnosed with very early stage mental illness, dementia or Alzheimer’s—you can include a doctor’s note and evaluation in your estate plan, which the probate court would see if there was ever a challenge to your will on competency grounds.

Update that Estate Plan

Nothing invites challenges more in probate court than estate documents that aren’t updated.

If you left a business to your brother when you drafted your will 15 years ago, and the business no longer exists, or if you left assets to your wife who you’ve long since divorced, you’re going to end up with people going to probate court and saying “this will doesn’t reflect what he or she really wanted to happen.”

When you have to probate an estate, we can help. Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help with your probate case.