Creating A Strong Will to Avoid Probate

By: Matthew Funeral Home
Monday, April 3, 2023

When you create or edit your Will to reflect your wishes, it can be helpful to design it in a way that makes it difficult to contest in the event of probate. If you create a strong Will with your attorney, you can better ensure that your assets go to the intended recipients. 

What is Probate Court?

A probate court is a type of civil court where matters regarding Wills and estates are contested. However, when an estate is put into probate, the assets are usually held during the course of the case. This will make it difficult for your chosen heirs or surviving spouse to have access to those assets. Having a strong will that is harder to contest will make it harder for your heirs to contest the Will, which means that the intended recipients of your estate can more easily access the assets you are bequeathing to them.

Hire Legal Counsel

All Wills or Trust documents should be created with your estate attorney. Internet templates or handwritten statements can be more easily overruled in probate court. Family members or their attorneys may find ways to poke holes in your document and contest it. It is much safer to have a document created by an experienced estate attorney, who could help you articulate your wishes best.

Disinheriting Family Members

If you feel the need to disinherit a family member, taking the time to strengthen your estate plans can be important. While most people do not need to disinherit a family member, it can be done for any number of reasons. Some parents may disinherit out of malice, while some do it because they don’t believe that their children earned it. Some parents may disinherit a family member simply because they feel that the potential successor does not need the assets. Others may disinherit a child for their lifestyle. Your reasons are your own. It should be known that it is almost impossible for a parent to disinherit a minor child in any state. You should not use the threat of disinheritance as a way to control a child’s behavior.
Additionally, please note that disinheriting does not just apply to your children. This can also be utilized to prevent siblings, nieces, nephews, etc. from attempting to take away assets from your chosen successors.

Do Not State The Reason For Disinheritance in the Will

Your Will should be clearly and simply written. Stating the reason for disinheritance in the Will can provide them with a foundation for combatting your decision. By keeping it simple, you can limit their ability to contest the Will. Stating “I do not provide for John Smith in my Will” is more than enough. In New York, you are not required to elaborate further. Any explanation that you want to leave could be done through the Will’s executor. Most state courts will assume that an omission of a child from the terms of your Will or Trust was an oversight unless clearly stated. Therefore, do your best to make your intentions clear.

The Executor and The Disinherited

The executor of your Will should be made aware of the reason for disinheritance. They will be the ones to submit your Will to probate. They will also have to defend the Will in your stead. It is often suggested to leave a written reason for disinheritance with your executor. This will explain your position, and corroborate your decision. It also shows that it was not a rushed decision, but one that was thought out by you. Taking the time to do this properly will help ensure that your wishes are on the record This can help the probate court better follow your wishes. As mentioned above, be wary of stating specifics that could be proven untrue at the time of your death. These statements could be used to contest the Will.

Should You Tell the Disinherited?

This is ultimately up to you. Generally, it can be quite a double-edged sword to inform a disinherited family member. If you do, they may strive to change their behavior, even if it is just a facade for your assets. However, they may become more combative and may pressure you to include them in your Will. Sometimes, not telling them is best, if only to avoid conflict.

Leaving a Modest Bequest

Some parents will leave a child with something small instead of cutting them out entirely. This could be a token gift or a small sum of money.  Overall, this is done to establish that you specifically did not leave them out. This is most often found done by leaving a family heirloom or other trinket. Even just a $1 inheritance can be enough to get your point across.

Re-Inheritance Trusts

You can name a trustee with a Lifetime Trust, with the ability to “re-inherit” your successor. The trustee would be given the Power of Appointment, to hold the Trust until certain conditions, set by you, are met. As long as these conditions are reasonable and attainable, this will probably hold up in court. Your estate attorney will be best equipped in helping you establish a Trust.

Matthew Funeral Home does not provide legal or financial advice via articles. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for legal or financial advice.
For over 50 years, Matthew Funeral Home has been serving the Staten Island community. We can help with almost every aspect of your loved one’s memorial service. Our family is here to serve yours, every step of the way.

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