Tuesday, February 26, 2013

TIDYING UP YOUR ESTATE PLAN IN 2013

It is well established that an individual is entitled to direct the disposition of his or her property upon death in accordance with that individual’s own desires.  With a few exceptions, there is no legal requirement that a person’s property be left to his or her heirs at law.  Perhaps a person chooses to leave a portion of his or her estate to a friend or confidant, or even to a favorite charity.  Often times, when a person determines to leave property to someone other than a family member, the estate planning attorney will take care to properly document the file to make clear that the person was making a conscious decision to leave his or her property in the manner set forth in the documents.
 
Generally speaking, estate planning documents such as trusts and wills are designed to reflect the wishes of the person or persons creating the documents.  There are times, however, when we are contacted by a deceased person’s legal heir based upon concerns by the heir that the documents presented do not in fact represent the wishes of the person who has passed away.  In these cases, it is important for the attorney to work with the concerned family members to gather all of the available information surrounding the preparation and execution of the estate planning documents by the deceased person.

In Nevada, there are basically two grounds to contest a trust or will.  The first basis is lack of testamentary capacity; and the second one is undue influence.  There are legal guidelines to help determine if a person had legal capacity to execute a trust or will.  As a threshold matter, an individual must be of “sound mind” at the moment he or she signs the will.  In addition, the person would need to know the extent of his or her property, as well as to whom such property would normally be expected to pass absent any estate planning.  The person would also need to understand the legal implications of executing the trust or will.  The test for undue influence, on the other hand, focuses on whether or not the person was acting freely or, rather, pursuant to the influence of one or more other persons.  Undue influence occurs when the will of another person overrides the will of the  person making the trust or will based upon factors such as coercion, duress and/or fraud.
When it appears that there are sufficient grounds to contest the making of a trust or will, an interested person has the option to file a trust or will contest with the court.  Such contest proceedings are typically conducted similar to most civil cases, in that all parties will be given an opportunity to tell their side of the story and present evidence in support of their position.  Witness testimony is common, and medical evidence often plays an important role in these types of proceedings.
 
Trust and will contest actions should not be taken lightly.  It is important to thoroughly discuss the risks and benefits of bringing such an action with an attorney who is knowledgeable in handling these unique types of cases.  There may be certain limitations on the time in which an action may be filed.  Additionally, there are costs and expenses associated with any court proceeding.  Moreover, there often exist “no contest” clauses in trusts and wills that will need to be carefully reviewed and considered prior to bringing a contest.

For the most part, the estate planning documents that a person leaves behind are truly reflective of his or her desires.  There are, however, a handful of instances in which a trust or will contest is clearly warranted.  When there do exist concerns regarding the validity of any estate planning document, we encourage you to review any such concerns with one of our qualified attorneys without delay to preserve and protect your rights going forward.
 

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