Some estate planning clients change their estate planning frequently as they get older. Usually this stems from excessive worry over what will happen when they are gone. But whatever the cause, elders should be careful when changing their estate planning in their later years, especially if they change beneficiaries or the amounts received by the beneficiaries. A former beneficiary who has been disinherited may file a lawsuit (called a “contest”) after the elder’s death to challenge the elder’s will or trust, resulting in potentially costly litigation to the other beneficiaries of the estate.
While there is nothing anyone can do to prevent a jilted former beneficiary from filing a contest, there are steps the elder can take during his or her life to avoid it:
1. The elder should contact an attorney to discuss his or her wishes with respect to new estate planning, instead of using do-it-yourself forms or services.
2. The elder should consult with his or her primary care physician to have his or her mental capacity evaluated, and obtain a letter from the physician establishing the elder’s capacity.
3. In the case of estate planning that favors someone who is not related to the elder, the elder should consult a second attorney for the purpose of reviewing the proposed estate planning and certifying that it reflects the elder’s true intent.
These steps ensure that impartial witnesses will be able to testify as to the elder’s mental capacity, creating a formidable defense against a will or trust contest. Our Northern California attorneys, located in the Walnut Creek/Danville area of the East Bay are available to assist clients interested in creating or strengthening their estate plan.
