How Can I Contest a Will?

Challenging a will is not an easy thing because the court views a will as the last wishes and voice of the decedent. Anyone who may have something to gain from the estate has a right to contest a will, but they must have the grounds to do so.

A person may challenge a will based on one or more of the following criteria:

contest a will-          Lack of testamentary capacity: When a will is challenged on this ground, it is usually on the basis that the decedent suffered from some kind of mental incapacity, such as senility, dementia, insanity, or was under the influence of a mind-altering substance. Minors are not considered to have testamentary capacity unless they are married or serve in the military. The witnesses who signed the will usually will testify as to whether or not the decedent had testamentary capacity at the time the will was written.
–          Fraud, forgery, or undue influence: You may contest a will on this ground if the decedent was manipulated into leaving all or much of the estate to the manipulator.
–          New Trumps Old: If there is a newer, valid will than the one going through the probate process, then the new will trumps the current will. This is why dates on wills are so important.
–          Validity: In Florida, the will must be signed by two witnesses. If the will is not considered valid according to Florida state law, then you have grounds to contest it.

If you think you have grounds to contest a will currently going through probate, then you should contact a probate attorney to discuss your rights.

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Holographic Wills: A Bad Idea

Handwritten willA holographic will, or handwritten will, is valid in Florida only if it meets specific requirements set forth by law. These requirements include that the will meets specific execution standards, is properly witnessed, and names beneficiaries. If the document does not meet these standards, the will cannot be used in the probate process, giving the power of the estate to the courts and making the process all the more difficult.

A holographic will should only be used in extreme situations, such as if the person does not have a will and has to have immediate surgery.

The best thing to do is to draft and update your will far before anything happens to you. If you have any assets of value, you need to draft a will, regardless of your age. You want to make sure that if something happens to you, your wishes are carried out and your loved ones are not stuck with a lengthy, painful probate process.

Your will should include monetary assets, no matter how minute, physical assets, such as a boat or house, non-physical assets, such as intellectual property, and digital assets, such as an EBay or online gaming account.

If you do not have a will or estate plan, you should contact an estate-planning attorney. It is never too early or too late to draft a will, that is, until you are deceased.

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Times to Update your Estate Plan

When to update your Estate PlanIt is very important to keep your estate plan updated. There are many factors and life events that affect your estate plan which is why you should keep it updated.

Large estates (those over the applicable exclusion amount) should be reviewed every year.

All other estates should be reviewed every four years.

You should also review your estate plan when the following life events occur:

– Change in value: If the value of your estate has increased or decreased by 20% or more.

– Change in economic status: If the value of your assets, your income level, or your income requirement changes.

Retirement

– Change in occupation or employment

Changes in family situations: If you, your children, or your grandchildren have married, divorced, been born or adopted, passed away, or become ill or incapacitated. Also, if other individuals have become dependent on you.

– Changes in business interests:

  • Formed, purchased or sold a closely held business
  • Reorganized or liquidated a closely held business
  • Instituted a pension plan
  • Executed a by-sell agreement
  • Deferred compensation
  • Changed employee benefits

– Major transactions:

  • Inheritance
  • Substantial gifts
  • Borrowed or lent a substantial amount of money
  • Purchased, leased or sold material assets or investments
  • Changed residences
  • Changed significant property ownership
  • Become involved in a law suit

– Change in insurance coverage: life, health, disability, medical, liability, etc.

Death of a trustee/executor/guardian

Other important changes: Any changes in your life that you feel affect your estate plan.

If you change part of you estate plan, you should review the entire plan to make sure it remains cohesive and effective. Due to the legal complexities of Estate Planning, we recommend that you contact an attorney to create or update your estate plan.

And remember… Estate Tax laws may change at the beginning of 2013.

Source: Waddell & Reed Financial Advisors