• Jeff Daybell

Preventing a (Legal) Fight

Updated: Nov 24, 2020


No one really wins in a legal fight over inheritance, except the attorneys.

Almost every person I meet with tells me that their kids won’t fight about their assets after they pass. That may be true for some families, but certainly not all families. In my first job as a law clerk, I worked on a few litigation cases over inheritance. That's when I discovered that an inheritance can be completely consumed in attorney's fees if there is a legal fight and that some simple planning could have avoided it all.


The standard way to prevent a contest in Utah is for planners to include a “no contest” provision in the will and trust. Here is a sample of what that provision may look like in a will:


If any person directly or indirectly attempts to oppose the validity of my Will or my Revocable Living Trust, including any amendments to my trust, or commences, continues, or prosecutes any legal proceedings to set my Will or Revocable Living Trust aside, then that person will forfeit his or her share, will cease to have any right or interest in my property, and will be considered to have predeceased me for the purposes of my Will.


Sounds great right? It sounds like you have just successfully deterred anyone from trying to contest your will, because if they do, then they don’t get anything. Remember what your spouse told you about that amazing beach-side investment opportunity in Arizona? If it sounds too good to be true, it IS!


In Utah, the law states that “a provision in a will purporting to penalize any interested person for contesting the will…is unenforceable if probable cause exists for instituting proceedings.” (Utah Code Annotated § 75-3-905. Click here to read the code section.) Darn it! The language of the contest provision above won’t completely protect you from having your kids or other interested parties contest your estate planning.


The contest provision is only one way to deter a legal fight, here are some additional steps you can take to prevent a (legal) fight:


Avoid the “DIY” solutions.


The Do-It-Yourself options out there are not customized to you. They aren’t customized to the needs of your family. They certainly aren’t customized to be able to prevent a contest. You don’t need to think of all the worst-case scenarios, give me a call and let me do the worrying for you! However, if you have already used a DIY resource, I can review it for you to make sure it is what you want.


Let family members know about your estate plan.


Remember the playground rhyme:


Secrets secrets are no fun,

Secrets secretes hurt someone.


The same holds true for your estate plan. While it is not necessary to let your family members know all of the intimate details of your estate plan, you should let them know that you have taken the time to create a plan that spells out your final wishes and who they should contact if you become incapacitated or in the event of your death.


Use discretionary trusts for problematic beneficiaries.


You may feel that you have to completely disinherit a beneficiary because of concerns that he or she will squander their inheritance or use it in a manner that is against your beliefs or harmful to them. However, there is an alternative to disinheriting someone. For example, you can require that the problematic beneficiary’s share be held in a lifetime discretionary trust and name a neutral, third party, such as a bank, trust company, or individual as trustee. This will ensure that the beneficiary will receive his or her inheritance according to the terms and conditions you have dictated, while keeping the money out of the hands of unintended parties, such as creditors or an ex-spouse. You will also be able to control who will inherit the balance of the trust if the beneficiary dies before the funds are completely distributed.


Keep your estate plan up to date.


Estate planning is not a one-time transaction – it is an ongoing process. That is why when you choose an estate planner to help you create your plan, you should find one that you will feel comfortable picking up the phone and discussing changes with. I strive to make my clients feel like they can contact me at any time by providing a concierge-style planning service. That means I meet you in the comfort of your home and you have my personal cell phone number. Clients can call or text as they wish without the fear of an increased bill. I also encourage my clients to not hire me if they don’t feel comfortable with me. You want to have a relationship with your estate planner that allows for easy updates in the future, so don't settle for someone that won't invest the time to get to know your family's situation and your wants and desires.


By following these tips, your heirs will be less likely to challenge your estate planning decisions and will be more inclined to fulfill your final wishes. If you are concerned about heirs contesting your will or trust, why not give me a call and let me show you how it feels to be your attorney’s top priority while we work together to customize your estate plan.

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