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What do you do when a Family Member Wants to Contest a will?

By , November 13th, 2015 | 4 Comments »

Contesting a Will

What do you do when dad wants to leave everything in his estate to you but you know your brother is going to contest the will?

When a will is contested because family members don’t agree with how a family member’s estate is being parceled out, it can get ugly and very expensive – and gut wrenching to see the fight through to resolution.  No one really wants to engage in that kind of battle, especially when you are grieving, but there are steps that beneficiaries can take now before their parent or other family member passes to preclude protracted conflict.

There are purposeful steps now that one can take to at least reduce the pain of the process later.  First step is to have a will drawn.  But, don’t make the mistakes that many others have made in getting Dad to do a new will.  Here are some do’s and don’ts:

Don’t use your own attorney – suggest that your Dad hire his own attorney to draft his will; if your father has his own lawyer that does not also represent you, then use him or have him recommend the estate planning lawyer;

Don’t rely on the family attorney that could possibly be unduly influenced by family members who also have business affairs with him or her.

Don’t be in the room with your Dad if your other siblings are not when they are discussing the will.  You never want to be accused of influencing the process.

Do suggest that the will signing be videotaped to demonstrate that Dad was of sound mind and judgement at the time.

Do suggest that dad say in his will that he is excluding someone from the will but do not say why.

Do take steps to include your brother in activities with your Dad.  Keeping them apart is a hallmark indication of undue influence.  Make sure that Dad includes your brother in invitations and even invite her to family functions that you are throwing.

Do make sure to remember that the will is just one part of the estate planning process.  But many assets such as joint accounts go to loved ones outside of the probate process.  Thus if there are joint accounts between your Dad and brother, remember to remind him to go to the bank or financial institution to change the designation.  Of course, be certain not to attend or to drive him to the bank.

Do remember to check beneficiary designations as annuities, IRA’s and 401(k)’s pass to the designated beneficiary rather than through his will.

Do remember to make sure that the insurance is paid how your father would want.  If he included your brother way back when, make sure he calls to have the change of beneficiary handled.  Of course, don’t be on the call and don’t act as the witness on the change of beneficiary form.

Plan now to avoid the costly and challenging ordeal that would otherwise result from a poorly planned estate.

Jay J. Freireich, Esq. is a member of the wills, trusts and estates practice group at Brach Eichler LLC in Roseland, N.J. Contact him at [email protected] .

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  • Alexa Mason says:

    This is really helpful! It’s just a struggle to get what’s rightfully yours.

  • James says:

    This is a land mine issue…great advice.

  • Sam Fisher says:

    If I had a family member try to contest a will, I wouldn’t be very happy with them. Depending on the relationship between the two people, someone might get more than someone else. Either way, if they do pull that card out, then you’d probably want to seek out legal help. Like you said, there are many options that you can choose from. As you listed above in the Do’s and Don’ts, I would for sure see about figuring out the 401k’s and any IRA’s that they would have.

  • Gonzalo Fritz says:

    Informative comments ! I am thankful for the specifics , Does anyone know where my assistant could possibly acquire a fillable VAR Form 300 document to fill in ?


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