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How your estate plan can reduce probate challenges later

On Behalf of | Dec 28, 2022 | Power Of Attorney | 0 comments

Your estate plan describes what you want to do with your property after your death and provides certain key protections for family members who depend on you, possibly even your pets. It is natural to expect that your loved ones will follow your instructions and carefully adhere to your wishes related to your estate.

Unfortunately, some of your legacy may not end up having the impact you may have hoped when you first drafted your documents. A small but noteworthy percentage of estates will end up embroiled in probate litigation because family members disagree with the testator’s instructions or the actions of the executor of the estate.

Your efforts during the estate planning process can significantly reduce the likelihood of such challenges damaging your legacy later.

You can add a penalty clause to your will

Virginia state law and court precedent allow the probate courts to enforce what people call no-contest clauses. Provided that you include the right language and specifically talk about imposing penalties on those who challenge your legacy in probate court, a judge can potentially disinherit someone who seeks to undermine your will by challenging it in probate court.

Although they are theoretically enforceable, no-contest clauses require careful planning and likely thorough communication with your family members. They won’t deter anyone from challenging your wishes if people don’t understand what they could potentially lose, for example.

You can keep your documents as current as possible

One of the biggest mistakes people make when planning their estates is that they leave people out of their documents and don’t address the choice directly. Those omitted individuals may then have grounds to challenge the estate and probate court.

Beyond mentioning your decision to disinherit someone or limit what they receive from your estate, you may also need to frequently review and update your documents if you believe your family is at elevated risk of someone contesting your wishes. When you make the effort to update documents whenever your property changes or beneficiaries change, it will be much more difficult for others to undermine your intentions by bringing a challenge in probate court.

Thinking of potential future challenges during the document development stage can help testators reduce the risk of challenges derailing their carefully-created estate plans.