An estate plan can be made up of several documents, and a will is one of the most important. There are several benefits to a comprehensive estate plan, including ensuring that your assets benefit the individuals and agencies you want. However, if your estate plan is unclear, your will could be contested by family members or creditors during probate.
Parties who make will contests may be well-meaning, or they may simply disagree with your will and are making a contest out of spite. Will disputes between family members can create serious issues in a family and lead to larger court cases. Few people want to deal with this while grieving the loss of a loved one.
Will contests can jeopardize the work you put into creating an estate plan. That’s why it’s essential to understand how will contests can be made and what you can do to avoid them. By planning for potential will contests, you can feel more confident that your wishes will be upheld.
Grounds for Will Contests in Nebraska
There must be a legally valid reason to contest a will. These reasons include:
- Not Legally Signed: When you create a will, it must be typed or handwritten and signed by you and two or more competent witnesses to the signing. If these requirements are not met or are called into question, the will may be considered invalid.
- Lack of Capacity: To be able to create or change a will, you must understand the legal meaning of the will, your assets, and signing a legal document. An heir or interested party can make a claim that you were not mentally sound when you created or altered the will and lacked the capacity to sign it.
- Fraud: An heir or interested party may claim that you were forced to sign the will, your signature was forged, or you were defrauded by someone into believing you were signing something else.
- Undue Influence: This claim suggests that you were under the influence of another party when you created the will. It suggests this person influenced you to change the will in their favor and/or to the detriment of an intended heir. They must prove the exposure to undue influence, the ability and intent to use undue influence, and that the result is a will corrupted by undue influence.
If a will is determined by the court to be invalid during a will contest, parts of the will or the entire will may be voided. If there is a prior version of the will, this may be used instead. If there is no other version of the will, your estate will be distributed according to intestacy laws. This means it will follow Nebraska inheritance laws, such as going to a surviving spouse, parents, or children.
How Can You Protect Your Will From Contests?
There are several things you can do to protect your will and estate plan from contests. This includes:
- Create a will early. If you begin your will early in life, it will be hard to claim a lack of capacity or fraud. This also provides you more time to alter your will as necessary, clearly showing prior changes in a will. This can also make it harder to claim that you were under undue influence.
- Update your will. After major changes in your life or every few years, review your will. Make necessary changes so that it reflects your current needs and wishes for your estate. If someone contests your will, the court can look at your prior wills and see how your changes reflect your mental capacity. Additionally, if your will is successfully contested, it won’t change as severely if you have a valid will from a few years prior.
- Create a trust. A trust can keep assets out of probate and is more difficult to contest than a will. If your will and trust have the same heirs and beneficiaries, will contests will be less likely to succeed. A revocable trust can also be updated throughout your life.
- Talk to your family. Communicating your wishes to your family can prevent will contests from family members who genuinely believe that your will does not reflect your intent. It’s unnecessary to explain the details of the will, but some information can prevent heirs from being surprised.
The most effective way to protect your will from contests is to work with an estate planning attorney. An attorney can help you determine the ways that someone could contest your will and have specific and unique strategies to prevent this. An attorney will help you create an enforceable and clear will.
Q: Can a Will Be Contested in Nebraska?
A: Yes, a will can be contested in Nebraska. It may be improperly signed under state requirements, or an heir may believe the will was created or signed using fraud. Other claims of will contests include undue influence or that the testator lacked the capacity to create and sign a will.
Q: What Is the Statute of Limitations for Contesting a Will in Nebraska?
A: A will can be challenged in Nebraska within three years after the testator’s death or within one year after the distribution of the will’s contents, whichever comes later. These statutes of limitations do not apply when the will contest involves fraud. The person must also have reason to challenge the will, meaning they will benefit financially if the will is determined to be invalid.
Q: Does a Will Avoid Probate in Nebraska?
A: In most situations, an estate with a legally valid will must still pass through probate court. A trust can prevent certain assets from entering probate court. This is because the assets pass to the third-party trustee upon the trustor’s death rather than to the state. Creating a revocable living trust allows you to change the terms or beneficiaries of the trust while ensuring that they do not pass into the control of the state.
Q: How Long Does It Take a Will to Go Through Probate in Nebraska?
A: Probate is a lengthy and expensive process that could take six months to a year or several years. The length of time probate takes depends on how many assets are in a person’s estate and how complex those assets are.
Protect Your Estate
For experienced estate planning attorneys, contact Stange Law Firm. Our team can help you create a straightforward and enforceable will.