When you devote planning, time and energy to your estate plan, it is reasonable to assume that you have some basis for your decisions regarding who should inherit your assets. Regardless of your justification or motivations, you generally have the right to dispose of your assets as you see fit with some limitations, such as those created by New Mexico community property law. When a person thoughtfully engages in the process of succession planning, they may not contemplate that family or other loved ones will decide to challenge their trust or will. This is the second part of our two-part blog post for part I of this article, click here discussing strategies for discouraging challenges to your intentions regarding disposition of your estate through a living trust or last will and testament.
Avoid Explanation for Disinheritance:
If you intend to disinherit a family member or other person who may anticipate being among your beneficiaries, you should clearly identify the person being excluded and your intention to leave a smaller portion of your estate or no assets to this individual. However, you should not provide explanations or justifications for your decision as this may only encourage a contest of your will and lingering bad feelings.
Using a No Contest Clause:
If you plan to divide your estate unequally between children or to include other provisions that may tempt family members to challenge your intentions, you may want to discuss the option of including a “no contest” clause in your will or trust with your New Mexico Estate Planning Attorney. A no contest clause essentially provides that if a beneficiary challenges your will or trust and loses, he or she will forfeit any inheritance under the terms of the document. The inclusion of this type of provision may discourage will contests because of the risk involved in initiating such an action.
Avoid Favoritism When Possible:
If you find dividing assets equally between your children and spouse an acceptable disposition of your assets, this will be less likely to result in a contested will. When you divide your house equally into three separate shares between your spouse and two children, there is little basis for claiming that this division is unfair. However, even this type of arrangement can be complicated by community property law so it is important to obtain legal advice despite your intention to set up a very equal division of your estate between your spouse and children. If you have children from multiple marriages, the need for legal advice and the risk of potential disputes is even greater.
If you have other questions about avoiding challenges to your estate plan, we invite you to review Part I of this blog post. The best way to obtain specific information about your situation is to contact an Albuquerque Estate Planning Law Firm.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experience legal counsel for a specific opinion tailored to your individual circumstances.
The New Mexico estate planning law firm of Jay Goodman & Associates, PC offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your options. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.
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