In 2024, only 32% of Americans reported having a will. It’s easy to see why: this is a sensitive process that seems easy to put off.

Unfortunately, the emotional impact of writing a will may also stop you from realizing that someone may contest it.

Challenging a will isn’t too common in the U.S., but it’s hard to predict when someone may decide to do it. And if the challenge is successful, it can lead to unneeded strife for your loved ones after your passing.

The good news: there are several things you can do to prevent a contested probate. Here are some tips to ensure your last wishes will be carried out!

Know What to Expect

Start by familiarizing yourself with the probate process. When it comes to challenging a will, there are only a few select people who can do it:

• Your spouse
• Your children
• People included in your will or codicil
• People included in a previous will or codicil

Contesting a will also requires raising a valid question about it. A person can’t contest a will just because they disagree with it or are angry about its contents. They may only challenge a will during the probate process.

If the challenge is successful, there are several things that can happen. Common outcomes include:

• Replacing a will with a previous version
• Replacing a part of the will
• Setting aside the entire will

Follow the Rules

Execution issues are among the most common grounds for contesting a will. To avoid this, you must ensure that your will is enforceable.

For starters, you should follow your state’s laws when signing and completing a will. Ideally, you’ll hire an estate planning attorney to help you with this process. They’ll also be able to provide legal advice for probate.

Want to write someone out of your will or reduce their share of your estate? Write a letter of intent to your executor stating the reason for it. Send the letter to the attorney drafting your will as well.

Prove Testamentary Capacity

Another common reason to challenge a will is claiming the testator had mental issues at the time of writing. The common term for this is “sound mind.”

First things first: signing a will doesn’t require you to have perfect mental capacity. It only requires you to understand the following:

• State of your assets
• Your heirs and beneficiaries
• The effect of the will

An easy way to prove you’re mentally capable is to obtain the right medical documentation. For example, having a competency assessment signed by a psychiatrist will leave no room to argue against your mental state.

Videotaping your signing is another good probate litigation prevention method. This would show that you signed your will freely and of your own accord.

Talk to Your Heirs

One good way to ensure a smooth probate process is to discuss your will with your heirs. This will prevent bad surprises after you pass away.

Talking about your will also gives you a chance to help your heirs understand your reasoning. By sharing your thoughts and defusing any potential animosity, you can do a lot to deter someone from contesting your will.

Depending on your state, you can disinherit anyone except your spouse. If you completely write them out of your will, the court may allow them to take a certain percentage of your estate.

Prevent Undue Influence

Some testators are defrauded into signing a will. This can happen if you think you’re signing another document but end up signing your will.

As far as estate planning tips go, minimizing undue influence is essential. Think about a person who may have control over everything you do. For instance, a live-in caretaker may be a prime target of undue influence claims.

If you’re worried about these claims, sign your will with witnesses present. You should have at least two witnesses, and they should also sign the document. For best results, notarize the will as well.

Beyond proving your mental acuity, taping the signing can prove that nobody unduly influenced the estate plan. Take care, however, as some videos may inadvertently show the opposite.

Add a No-Contest Clause

When it comes to avoiding probate disputes, it always helps to include a no-contest clause. This clause is also known as “in terrorem,” or “about fear.”

A standard no-contest clause functions as a legal threat. It states that, if an heir challenges your will and loses, they’ll receive nothing. Your attorney can explain how to draft this clause according to your state’s laws.

For a no-contest clause to be effective, all your heirs should get something in the will. If they get nothing, they can contest the will at no risk. Ideally, you should leave them enough of a gift to deter them from this idea.

Establish a Living Trust

The best way to avoid a will dispute is to avoid writing a will altogether. What you can do instead is establish a revocable living trust.

As the name implies, a living trust allows you to place your money and assets into a trust during your lifetime. The trust would technically own your money and assets, but you’d spend and use them as you wish.

Upon your passing, your assets would go to your trust beneficiaries. A trust doesn’t go through the courts and doesn’t involve the probate process. One can challenge it, but this is far more complicated than contesting a will.

Finally, revocable living trusts are private. If someone isn’t listed in a trust, they won’t be privy to its details. A living trust leaves little need for a will, though it’s smart to prepare a pour-over will for any forgotten assets.

This Is How to Prevent a Contested Probate

Given how much thought goes into writing a will, it’s important to safeguard it as much as possible. Beyond following the above tips, your best bet is to hire an estate planning attorney to protect your rights.

At Rhodes Law Firm, PC, we’ll help you prevent a contested probate! Our attorneys can create the perfect custom-fit plan for you and your family. We’ve been helping Georgia and South Carolina residents for 40+ years.

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