Better Safe Than Sorry: Have Your Will Properly Executed

Better-Safe-than-Sorry-Have-Your-Will-Properly-ExecutedThanks to a lot of hard work and a little luck, you’ve done well financially. Maybe you’ve been able to travel and see the world, and you understand you can’t take it all with you.

By crafting a Will, you can outline what you want to happen with your assets (after your taxes and debts are paid) after you pass on. Without a Will, through the action of state law, your next of kin will receive your assets. If that’s not the outcome you want, having a Will professionally prepared provides you options of whom will receive the assets.

You could create your own Will or find a DYI form online. However, your desire for simplicity and low cost may make things very costly and complex for your estate and beneficiaries.

You “could” do many things on your own:

  • Replace the brakes on your car
  • Re-wire you home’s electrical system
  • Design your next home.

However, chances are you won’t because you lack the expertise. Performing these activities on your own could cause irreparable harm. You want your car to be able to stop; you don’t want your home to burn down, or have crumbling walls. So, you hire someone you trust to do these jobs to save yourself a lot of time and energy while giving yourself peace of mind. You understand the long-term financial risk isn’t worth the short-term financial savings.

The same principle applies with a Will, especially if family relationships aren’t good and there are assets at stake. If a Will is not executed properly, you may be laying the groundwork for the destruction of your estate plans. The more mistakes and errors in a Will, the more likely it will be contested in court.

The cost of defending a Will is billed typically to the estate itself. If a Will challenge is successful, the person who originally disputed the Will may gain control over the estate. Not exactly the desired outcome you would want.

Those who could challenge a Will include those named in the Will and those who would inherit if you died intestate (without a will). Commonly cited grounds include:

  1. The Will lacks the formality required by the state’s Statute of Wills: The testator (the one creating the will) must be at least 18 years old and if the Will is typed or printed, two witnesses must sign it. Verbal or oral Wills aren’t usually valid in New Jersey.
  2. The testator lacked sufficient mental capacity to legally execute a Will:The testator is presumed to have sufficient mental capacity to execute a Will (he or she was of sound mind and competent when the Will was executed). The testator understood the property to be disposed of, those who would naturally be seen as benefiting from the estate, the process of creating the Will and the distributions made in it.
  3. The contents of the Will are a product of undue influence upon the testator by another:Undue influence can be considered mental, moral, or physical efforts being exerted on the testator resulting in a loss of his or her free will so the contents of the Will actually reflect the desires of another person.
  4. The Will is the result of deception or fraud: This would take place if a beneficiary made at least one false statement to the testator, which resulted in the Will being written to benefit the beneficiary due to the false statement.

When a Will is created, it should be done so with potential challenges in mind to make it difficult, if not practically impossible, for a challenge to be successful. If you draft your own Will or just fill in the blanks on a form, you may not be creating safe guards for an effective defense, which will make your estate plans susceptible to a successful challenge.

Contact us today to discuss your estate planning needs.


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