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Avoiding Will and Trust Litigation

The San Diego Probate Court has many cases involving will and trust litigation. Wills and trusts can become the subject of litigation even when prepared by an experienced estate planning attorney. Issues which can become the subject of a will contest or trust litigation can be issues relating to the successor trustee or executor, codicils or amendments, the distribution provisions, or the management of the estate assets.

Here are some red flags which tend to trigger litigation that should be addressed at the time you draft your will or trust:

1. An “unnatural” disposition of an estate. Clients obviously have the right to leave their assets to anyone they wish however an unusual or unnatural disposition is more likely to be challenged. A “natural” disposition would be leaving your estate to your wife and then to your children. What is not “natural” is disinheriting a child, leaving substantial assets to a non-family member or to someone who has provided care to you, or leaving your entire estate to a new spouse, charity, or a pet to the exclusion of other heirs.

2. The timing of the estate planning document. Wills or trusts done just prior to death may simply be because the decedent realized the necessity for an estate plan, however changes to wills or trusts on the individual’s “deathbed” may raise questions of competency. There may be challenges as to whether the decedent had capacity, was unduly influenced, or under duress.

3. Drafting your will or trust at the insistence or with the assistance of an individual who gets more than other beneficiaries may raise similar concerns.

4. Favoring one child over another or a new spouse over your children from a former relationship. This may be a “natural” disposition of your estate but if someone feels slighted or omitted from a will or a trust, there is a potential for litigation.

The best way to avoid litigation over a will or a trust is to make sure your documents are prepared by an experienced estate planning lawyer. A properly drafted document should have a no contest clause although even that clause may not prevent a contest. You may want to consider rather than disinheriting an heir outright, giving that person a nominal gift to discourage a will or trust contest. Lastly, if you are creating an estate plan with an “unnatural disposition” you may want to consider having the signing of the document videotaped.

Will and trust litigation is costly and can be emotionally draining for everyone involved. For help creating your estate plan to avoid future litigation, contact us at Law Office of Scott C. Soady, A Professional Corporation. We can also assist with representation in any will or trust litigation.

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