Unsurprisingly, a person’s last will and testament can be a major source of conflict for any family, even if that family typically gets along well. There can be fights over who gets to keep money, houses, cars, and other valuables, of course, but also fights over precious heirlooms and other things that have emotional value, even if they aren’t worth much monetarily. Fortunately, there are things you can do when you’re writing your will to preempt these kinds of conflicts.
The most important tool you have for preventing conflict over specific items is a separate memorandum, which can be specifically referenced in your will. The memorandum can be in any form you want and can be as specific as you want, allowing you to direct that particular items (such as jewelry, heirlooms or furniture) will go to a particular beneficiary. Your executor is obligated to follow a memorandum like this if you sign it, date it and leave it in the same secure location as your original will so that your executor can find it.
Another option is the aptly named “no-contest clause” (known formally as an in terrorem clause). A no-contest clause is, put simply, a statement in your will that says anyone who contests your will shall forfeit their inheritance. It is designed that if someone goes to court to contest your last will and testament, they will not get to inherit. However, a no-contest clause is rarely enforced because it does not apply if the contestant has probable cause to believe there is something wrong with the will, such as it being a forgery or having been made under duress. Courts will usually strain to find that there is probable cause for a contest, and it is only the rarest of circumstances that courts will find a challenge to be completely unreasonable and without merit to disqualify a challenger from an inheritance based on a no-contest clause.
However, those are not the only ways to keep potentially contentious family members from starting a conflict. For example, since a common source of conflict is over unallocated property or money, a good way to settle outstanding property is with a residuary clause. A residuary clause designates one or more people to receive any money or property left over after all estate expenses are paid, and all specific gifts are made. This has the added benefit of keeping your estate out of intestacy, which is the process by which unallocated property is distributed by default rules which may not reflect your wishes.
And finally, if there is one person you do not want to inherit from you under any circumstances, you can put a disinheritance clause in your will. A disinheritance clause is exactly what it sounds like: a statement in your will that prevents someone from inheriting from your estate, even if they normally would be entitled to a share for whatever reason. Even if your will consists of nothing but a clause disinheriting someone from your estate, it is still valid. The only exception is the “elective share,” which is a minimum portion of your property that your spouse is entitled to, regardless of how much you allocated for them to inherit. Otherwise, if you disinherit someone, they get nothing, and you do not need to specify why you are disinheriting them.
These are but a few of the things you may need to consider when writing your will. If you are planning your estate, you will want the advice of skilled estate law attorneys to guide you. The attorneys at Hunziker, Jones & Sweeney, P.A., will help you put together an estate plan that is right for you. Just send us an email at info@www.hcrmlawoffice.com (or use our contact us form), and we will reply as quickly as possible. You can also reach us by phone at (973) 256-0456.
