An estate plan provides several benefits, with one of the main goals being the distribution of an estate after death. When you create a comprehensive estate plan, you can distribute your assets to the individuals and parties you wish. You can also place someone you trust in charge of this distribution. However, if the will or trust you create is contested successfully, your assets will not be distributed according to your wishes. A Topeka estate planning attorney can help you determine how to prevent successful contests.
The Effects of Will Contests
Unfortunately, even unsuccessful contests have damaging effects. This can lengthen and complicate the process of distributing assets, whether the process is in probate or not. It can also cost your loved ones and intended beneficiaries’ money while causing a lot of stress. Furthermore, it also prevents individuals from receiving their inheritance until the contest is resolved. There are steps you can take to prevent contests from being successful, but there are also proactive ways to limit the likelihood of contests at all.
Although some will or trust contests are done in good faith by family members or beneficiaries who believe that something untoward happened, this is not always the case. Some individuals with the standing to contest your will or trust will do so out of spite or the belief that they deserve more inheritance than they received.
When you work with an attorney, they can help you determine who is likely to contest your will or trust. They can also show you how to secure your estate plan and limit the ability to validly contest a will or trust. One potential option is a no-contest clause.
What Is a No-Contest Clause?
A no-contest clause, also called an in terrorem clause, states that any heir or beneficiary who contests the will or trust and is unsuccessful forfeits some or all of their inheritance. While this does not prevent contests, as the name suggests, it can discourage them. If an heir or beneficiary is considering contesting a will because they are unhappy with their inheritance or otherwise are not certain that they would succeed in the contest, a no-contest clause can prevent them from acting.
However, no-contest clauses are not effective if you fully disinherit an heir or beneficiary. These clauses have no effect on those who have nothing to lose by contesting the will or trust. For individuals who inherit very little or receive no inheritance, filing a contest will only be beneficial for them.
When Is a Will or Trust Contest Valid?
An individual must have the standing to contest a will or trust, meaning that they are a beneficiary, were in a prior version of the will or trust, or would inherit under intestate succession law. They must also have valid grounds to contest it. Although some individuals contest these documents because they believe that they are unfair to them, this is not a valid reason to contest. Valid grounds to contest a will in Kansas include:
- New will
- Undue influence
- Lack of testamentary capacity
- Fraud or forgery
- Technical flaws
Although there is no way to prevent a contest completely, you can plan properly. If you believe that specific individuals with standing to contest your will or trust are likely to do so, it’s important to discuss this with your estate planning attorney. Your attorney can help you review your options to prevent contests. They can also show you how to legally strengthen your will or trust so any contests are less likely to succeed.
Successful Will Contests
If someone successfully contests a will, it will be voided. If there is a prior version of the will that is not voided under the same terms, then this will is used. However, if there is no valid prior version of the will, then the estate will be distributed according to inheritance laws that apply when there is no will.
FAQs
Q: Can You Contest a Will in Kansas?
A: Yes, you can contest a will in Kansas as long as you have the standing to contest it and valid grounds on which to contest it. To have the standing to contest a will, you must have interest in the contents of the will, either by being a beneficiary, a beneficiary in a prior version of the will, or an heir to the contents of the estate under intestate inheritance law. Valid grounds may include undue influence, fraud, or other reasons why a will could be invalid.
Q: What Makes a Will Invalid in Kansas?
A: A will is invalid and can be contested on the following grounds:
- There is a more recent version of the will.
- A third party exercised undue influence on the creator of the will, or the testator.
- The testator did not have the testamentary capacity to create a will with the full understanding of their assets and relationships.
- The will is forged.
- The testator signed the will, believing that they were signing something else.
- The testator provided assets to a party because they were defrauded.
- The will contains technical flaws, such as improper signing.
Q: What Is the Difference Between a Will and a Trust in Kansas?
A: The main difference between a will and a trust in Kansas is that a will is a public document, while a trust is a private legal entity. Both documents can distribute the assets in an estate, but a trust does so outside of public probate court. A trust is passed from the ownership of the creator of the trust to the trustee or successor trustee when the creator dies, so the trust is never under the jurisdiction of the state. If assets are only held in a will, they will pass through probate court.
Q: Are No-Contest Clauses Enforceable in Kansas?
A: Yes, no-contests clauses are enforceable in Kansas, whether they are included in a will or a trust. Although some states do not enforce these clauses, Kansas does, enabling individuals to limit or eliminate the inheritance of their beneficiaries who contest their will and are unsuccessful. The goal of this provision is to discourage unnecessary or petty contests that would drag out the probate or administration process.
Effective Estate Planning to Uphold Your Wishes
At Stange Law Firm, we can help you create or update your estate plan to make sure it is enforceable. We can also help you take steps to avoid claims based on a lack of capacity or undue influence, such as undergoing medical examinations in the estate planning process. Contact our team today to see how we can help.
