Atlanta Estate Planning, Wills & Probate | Siedentopf Law

Will Contests and How to Avoid Them: An In-Depth Guide for Georgia Residents

The specter of will contests can cast a long, dark shadow over families. Beyond the immediate financial and legal implications, will contests can inflict deep emotional wounds and sow seeds of discord that can fracture familial bonds for generations. Disputes over an inheritance can escalate into drawn-out legal battles, breeding resentment, suspicion, and hostility among loved ones. Often, these disputes are less about the financial assets in question and more about deeper issues such as perceived favoritism, unresolved conflicts, and misunderstandings. Even when the contest is resolved, the lingering bitterness and resentment can lead to estrangement and a permanent breakdown of relationships. It’s this potential for irreversible damage to family relationships that underscores the importance of thorough, clear, and proactive estate planning. This article provides an in-depth look into the triggers of will contests and the strategies that can be employed to prevent them. 

 

The Triggers of a Will Contest

 

Will contests, in Georgia and elsewhere, generally arise due to certain allegations against the will’s validity. Understanding these triggers is the first step towards preventing them. 

 

  1. Improper Execution: Georgia law stipulates that certain formalities must be adhered to for a will to be deemed valid. The will must be in writing, signed by the testator (or by someone else at the testator’s direction and in their presence), and signed by two competent witnesses. Failure to observe these formalities can lead to a will contest on the grounds of improper execution.

 

  1. 2. Lack of Testamentary Capacity: The person creating the will, or the testator, must have testamentary capacity. This means they must fully understand the implications of the document they’re signing. They should understand the nature of their assets, the identity of their heirs, and the effect of their will. If the testator is found to lack this mental capacity at the time of creating the will, it may be declared invalid.

 

  1. Undue Influence: Undue influence is another common ground for contesting a will. This occurs when the testator is coerced or manipulated into creating or changing a will by someone who stands to benefit from the will. Proving undue influence can be tricky as it often requires demonstrating that the testator was isolated, dependent, and easily influenced by the accused party.

 

  1. Fraud: A will can also be contested on the grounds of fraud. This generally implies that the testator was deceived or tricked into signing the document under false pretenses – for instance, being told that the document was something other than a will. 

 

Understanding these potential triggers is essential for avoiding will contests. What strategies, then, can be employed to ensure a will is resilient to such challenges?

 

Strategic Approaches to Avoid Will Contests

 

  1. Seek Professional Assistance: Employing an experienced estate planning attorney during the will-drafting process is one of the best ways to avoid future disputes. They can guide you through the complexities of Georgia’s estate laws and ensure that your will is properly executed according to the stipulated formalities. Their presence and attestation during the signing of the will can provide further protection against claims of undue influence or fraud.

 

  1. Regularly Update Your Will: Life is dynamic, and changes such as the birth of a child, a marriage, a divorce, or significant changes in assets should be reflected in your will. Regular updates keep your will aligned with your current circumstances and wishes, reducing the risk of outdated provisions causing confusion or disputes.

 

  1. Communication is Key: Open discussions about your estate plans with your heirs and loved ones can go a long way in preventing future will contests. This helps them understand your intentions, your rationale behind certain decisions, and what to expect when the time comes. This transparency can prevent surprises that might otherwise lead to disputes.

 

  1. Document Your Capacity: To insulate against potential claims of lack of testamentary capacity, consider getting a physician’s evaluation of your mental competency at the time of signing the will. A physician’s written statement can serve as powerful evidence affirming your capacity to make reasoned decisions.

 

  1. No-Contest Clauses: Georgia law permits “no-contest” or “in terrorem” clauses in wills. These provisions state that if a beneficiary contests the will and loses, they forfeit their inheritance. While this strategy can deter potential contests, use it with caution, as it may also stoke disputes.

 

Using Trusts to Avoid Will Contests: A Deeper Dive

 

Trusts can be a powerful tool in an estate plan, particularly when it comes to avoiding will contests. Trusts, unlike wills, do not go through probate. This means they are generally not made public, which can avoid sparking potential disputes that come from publicly airing the details of your estate. Moreover, trusts are more difficult to contest, providing another layer of protection against disputes among your beneficiaries.

 

Understanding Trusts

 

A trust is a legal arrangement where one party, known as the trustee, holds property or assets for the benefit of another party, known as the beneficiary. The individual who creates the trust is known as the settlor.

 

Trusts can be established while the settlor is alive (living trusts) or upon their death (testamentary trusts). Living trusts can be either revocable (can be changed during the settlor’s lifetime) or irrevocable (cannot be changed once established). 

 

Advantages of Trusts

 

Privacy: Unlike wills, trusts offer privacy as they do not go through the probate process. The details of the trust remain private, which can prevent potential disputes among beneficiaries.

 

Control: Trusts allow for a greater degree of control over how and when your assets will be distributed. For example, you could specify that a beneficiary will only receive their inheritance once they reach a certain age, or you could set conditions tied to responsible behavior.

 

Protection Against Contests: Trusts are more difficult to contest than wills. One would need to prove that the trust was formed under coercion, undue influence, or fraud, or that the settlor lacked mental capacity at the time the trust was formed, which is a high bar to clear. 

 

Using Trusts to Avoid Will Contests

 

Creating a trust, especially a living trust, can add a layer of protection to your estate plan. Here’s how:

 

  1. Establish a Revocable Living Trust: A revocable living trust allows you to maintain control over your assets during your lifetime. Upon your death, the assets in the trust are directly transferred to the designated beneficiaries without going through probate. Because the trust is not part of the probate process, it is much harder for someone to contest.

 

  1. Transfer Complete Ownership to the Trust: For a trust to be effective, it’s crucial to transfer all ownership of your assets to the trust. This means changing titles of properties and accounts to the trust’s name. Any assets not transferred into the trust could end up in probate and become subject to a will contest.

 

  1. Appoint a Reliable Trustee: Choose a trustee who is reliable, fair, and capable of managing your trust effectively. This person will be responsible for managing the trust’s assets and overseeing their distribution according to the trust’s terms after your death. This role could be fulfilled by a trusted friend, family member, or a professional trust company.

 

  1. Communicate Your Intentions: As with any estate plan, clear communication with your loved ones about your intentions can help prevent misunderstandings and potential disputes down the line. 

 

Trusts are not without their complexities and costs, and they may not be the right solution for everyone. It’s essential to consult with an experienced estate planning attorney to understand whether a trust fits into your estate plan and how to properly set it up to avoid potential will contests. Remember, every person’s situation is unique. What works best for one person may not be the best solution for another. Working with a qualified professional can help you navigate the intricacies of estate planning and ensure your wishes will be honored.

 

The journey through estate planning can be intricate, and the potential for disputes only underscores the necessity to tread carefully. With a thorough understanding of the factors that instigate will contests and by adopting proactive strategies, you can fortify your will against potential contests, ensuring your final wishes are carried out with minimal discord.

 

Whether you’re in the Atlanta and Brookhaven areas, or in Cobb, DeKalb , Fulton, Gwinnett, or another county in metro Atlanta, we can help you. We can also work with executors by phone or video conference if they are out of state or far away. Only after listening carefully will we present the options that are right for you and explore the benefits and costs of each one. 

Estate Planning E-Book for Georgia Residents

Click below to download your free copy of Sarah Siedentopf's e-book, Peace of Mind Through Estate Planning: A Guide for Georgia Residents.