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If you’re in the process of drafting a will, you probably want to do all you can to ensure that the assets in your estate are distributed as quickly as possible to your chosen inheritors. One of the major obstacles to distributing the property contained in an estate is a legal challenge to the governing will. By gaining a better understanding of the most common reasons that heirs (or would-be heirs) challenge wills, you may be able to fend off a future challenge to your will. Learn about the common reasons and situations that lead to a contest of wills below, and contact a knowledgeable Florida estate planning attorney with additional questions.
Few people are more likely to challenge a will than someone who expected to receive an inheritance but didn’t. Grantors may have excellent reasons for deciding not to include their child, sibling, or other relative in their wills that the reader doesn’t see. But, when a close family member isn’t included in a will when they would have expected to be, they may be able to make a convincing case that someone interfered during the will-drafting process, possibly exerting undue influence over the testator.
It is possible to intentionally exclude a child from inheriting if your will is drafted correctly. However, it is more difficult to disinherit a spouse or only provide a spouse with a small inheritance. Under Florida law, a spouse who is not included in a will can still take a sizeable portion of the estate by claiming what is called the spouse’s “elective share.” It is possible to get a spouse to agree through a prenuptial or other agreement to agree not to take the elective share, which is sometimes done in certain cases, such as when the testator has children from a previous marriage to protect, and the new spouse is financially independent.
Making fiscally-prudent choices that best carry out a grantor’s wishes is not easy for a trustee to do, and adding another person into this decision-making process can lead to second-guessing and even accusations of bad intent. If you can’t decide on one person to name as trustee, one option may be to name the other person as successor trustee and stress the importance of this role.
It isn’t surprising that someone who is in perpetually bad financial shape would feel slighted by what they perceive to be a less-generous inheritance than they expected, or even by a gift that is identical to one left to another heir who has far greater resources. It is possible to leave different amounts to different heirs, even if they stand in the same class as others. Talk to your estate planning attorney about how to accomplish this in a way that is less likely to result in a challenge to the will later on.
If you’d like to review your Florida estate plan or create a plan that best provides for your loved ones, contact the West Palm Beach offices of the seasoned and detail-oriented estate planning and elder law attorneys at Shalloway & Shalloway at 561-686-6200.