So, you finally got around to having a will prepared for yourself after years of talking about it. That calls for a sigh of relief and a pat on the back! But how can you be sure it will meet your needs and distribute your estate the way you intended?
In Harper Lee’s classic, To Kill a Mockingbird, we learned that America’s favorite fictional attorney, Atticus Finch, could “make somebody’s will so airtight can’t anybody meddle with it.” But that was fiction, right? Can a will ever be “airtight”? What steps can we take to make sure that a Court will uphold your will if anyone tried to challenge it, and distribute your estate as you intended?
Fogg Law Firm has several ways of protecting your will from being successfully challenged, or contested. First, it’s important to understand what can go wrong. There are a number of problems that can lead to a Court invalidating a person’s will. For one thing, Oklahoma law requires that a person meets certain formalities to have a valid will. In general, a person must sign his or her will, and the signing of the will must be witnessed by two persons. The witnesses must not be named as beneficiaries in the will. So, if a husband wants to give everything to his wife in his will, he must sign the will and two other people must sign the will as witnesses, but his wife cannot sign as a witness. If the wife did sign as a witness, the will’s gift to the wife would be invalid, and the will would not be able to do what the husband intended. The person making the will, and the person’s witnesses, must also make an acknowledgment before a notary public while signing the will. It is imperative that your attorney knows the formalities required for a valid will, and ensures that each requirement is met.
There are a few other things that can go wrong and cause a will to be invalidated. For example, a person can sign his will without understanding the nature and extent of his property, or who his family is that he has named in the will. In this instance, the person would lack the mental capacity to execute a will, and his will could be invalidated. Wills can also be invalidated if it can be proven that a person was forced by another to sign a will.
Finally, if it is your intent to disinherit one of your children, for any reason, this intent must be specifically set out in your will. Otherwise, your child that was not mentioned in your will could still inherit under the will as an “omitted child,” because State law protects children from being “omitted,” or accidentally forgotten from a will. Unless the will contains specific language disinheriting the child, then the will could be open to attack by the omitted child, regardless of whether you left them out of the will intentionally.
So now that we know all the things that can go wrong, what steps can we take to prevent these potential pitfalls? There are a number of preventative steps Fogg Law Firm takes with each of our estate planning clients to protect their estate from will contests. First, we can include a “no contest clause” in your will, which says that if anyone contests the validity of your will, that person inherits nothing from you. This prevents your heirs from fighting over who will get what, and it helps ensure that your estate is distributed exactly as you intended. Fogg Law Firm also ensures that each requirement of a valid will is fully met, and that the person making the will understands what he is doing and is acting voluntarily, free of any undue influence.
A good estate planning attorney thinks through these issues so you won’t have to spend your time worrying whether your estate plan will do what you intend. Contact us today for a free thirty-minute estate planning consultation, so we can make sure your estate plan will work for you.