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How to Protect Your Last Will and Testament From Being Challenged
Patricia Bloom-McDonald • Jan 10, 2022

How to Protect Your

Last Will and Testament From Being Challenged

The Last Will and Testament is one of your most basic estate planning documents. If you die without a Last Will and Testament (intestate), crucial decisions about how your property will be distributed and who will be the guardian of your minor children will be decided by Commonwealth of Massachusetts intestacy laws. 

Because your Last Will and Testament is so important, you will want it to be prepared by a  well-respected estate planning attorney. You will also want steps to be taken to keep it from being contested. The Law Offices of Patricia Bloom-McDonald is prepared to do both. 

Who Can Contest a Last Will and Testament?

Random individuals cannot challenge a Last Will and Testament; a person must have legal “standing” to initiate such action. The following people have legal standing to contest a Last Will and Testament:

  • Spouse

  • Beneficiaries under the Last Will and Testament submitted to probate

  • Legal heirs of the estate

  • Beneficiaries under the terms of a previous Last Will and Testament

  • Creditors of the estate

Even when a person has standing, however, she or he has to prove legal grounds for invalidating a Last Will and Testament. A Last Will and Testament cannot be contested simply because an individual is not happy with what he or she received as an inheritance. 

What Grounds Are Necessary For a Person to Challenge a Last Will And Testament in Massachusetts?

There are several legal grounds for contesting your Last Will and Testament in Massachusetts, including:

  • Procedural mistakes  — claiming that your Last Will and Testament was not properly drafted, signed, or witnessed; or

  • Lack of testamentary capacity  — claiming that, at the time of signing, you did not understand the nature or purpose of the document or what property constituted your assets; or

  • Undue influence  — stating that you were influenced or manipulated to make changes to your Last Will and Testament by a person who would benefit from those changes ; or

  • Fraud  — alleging that you were deliberately led to believe that you were signing some other document or that there was other misrepresentation concerning the Last Will and Testament; or 

  • Forgery  –  alleging that your signature on the Last Will and Testament was forged; or 

  • Revocation  – claiming that you revoked this Last Will and Testament before your death.

If a Last Will and Testament is contested by an heir, the probate process would become considerably delayed,, attorney and court fees are increased, and animosity among family members can last for generations. Sometimes, a disgruntled relative feels unfairly denied an inheritance or the child who was your end-of-life caretaker is left a much larger portion of the estate and another child is resentful. To protect your Last Will and Testament from being challenged, make certain that the attorney you work with has extensive experience and competent skills in estate planning with thorough Last Will and Testament preparation experience.

Steps You Should Take to Prevent Your Last Will and Testament from Being Contested

Although a competent estate planning attorney will ensure that your
Last Will and Testament is properly drafted and executed, and will recommend or take whichever of the following actions need to be taken, it is helpful for you to understand how unnecessary family drama can be avoided by:

Explaining Your Decisions to Your Family Members

Your loved ones are far less likely to contest your Last Will and Testament if you explain the reasons behind your decisions. It may be better a small dispute now, than a family split after you’re gone. Factors like your heirs’ health, income, family size, unrepaid loans, special needs children, or extra responsibilities for your care — may all play a part in the way you want to distribute your assets.  Remember you worked hard for your assets, it is YOUR Last Will and Testament, not anyone else’s, don’t allow anyone to influence your decisions.

Also, if you have left a large inheritance to a friend, relative outside of your immediate family, or a hired caretaker, make certain that your family understands your rationale and will respect your final wishes.

Using a no-contest clause

As our estate planning attorneys will make clear to you, often the most effective way of preventing a challenge to your Last Will and Testament is to make sure it contains a no-contest (“in terrorem”) clause. This clause states that if an heir contests the Last Will and Testament and loses, he/she will get no inheritance at all. Of course, this method only works if the existing Last Will and Testament provides the targeted heir with a fairly significant inheritance. If the individual has been disinherited, she/he has nothing to lose by challenging the Last Will and Testament.

Prove competency

A common way of challenging a Last Will and Testament is to argue that the deceased was mentally impaired at the time he/she signed the Last Will and Testament. Taking a competency test with a doctor who will attest to you being cognitively intact or having a recorded video of the signing can be proactive ways of preventing your Last Will and Testament from being challenged.

Please note: Our firm focuses on drafting quality Last Will and Testaments along with other Estate Planning Documents. Be rest assured that the documents we will prepare for you will be difficult to challenge. We do not provide services to assist with contested matters. If such a matter does arise, we will be able to refer the matter to a competent Law Firm that does offers that service, so you will still be in excellent hands.  

Using a Credit Card When You Have a Special Needs Trust

25 May, 2023
A special needs trust (SNT) allows you to meet your needs while receiving government benefits, such as Medicaid/MassHealth and Supplemental Security Income (SSI). When you have a special needs trust, you can use it to pay for goods and services government benefits do not cover, such as therapy, education,and housing. Since receiving income directly from your trust would jeopardize your eligibility for benefits, your trustee cannot give you cash from your SNT. When you use a credit card for permitted transactions, and your trustee pays off the balance with funds from your trust, these payments to a credit card company are not considered income. An SSI or Medicaid/MassHealth recipient who is capable of managing their own affairs can therefore use a credit card to make small purchases, and the trustee of the special needs trust need not micromanage every transaction. In the past, beneficiaries of SNTs sent their bills to their trustees for payment. Today, an individual with an SNT who qualifies for a personal credit card may find that using a credit card is more convenient. Credit cards have several benefits. Using a credit card to manage payments from your special needs trust allows you to maintain independence, gain access to some of the advantages of a credit card, and easily keep records while preserving your eligibility for Medicaid/MassHealth and SSI. Although credit cards can help people manage their special needs trusts, there are also several important restrictions and considerations to keep in mind. Consult with a special needs planner to ensure all transactions are acceptable under the trust's rules and comply with government regulations. The Benefits of Using Credit Cards When You Have a Special Needs Trust If you have a special needs trust, using a credit card has many benefits, including: Independence : Allowing you to maintain your independence. You can use your card to make qualifying purchases yourself. Your trustee does not have to make the transactions for you. Access to the Typical Advantages of a Credit Card : Using it responsibly can help you establish or build credit history, which may be important for your future financial needs. Record-Keeping : Credit cards provide easy record-keeping and a convenient way to monitor transactions from your special needs trust, which can also help special needs trustees fulfill their duty to maintain records. When you use your card, your trustee can observe your purchases and ensure that all expenses are allowable under the trust’s rules. Your statements can help your trustee keep track of funds leaving the trust. Benefits Eligibility : While adhering to Medicaid/MassHealth and SSI’s income and asset limits, you can access funds from your SNT. Credit cards can help prevent your trustee from accidentally providing you with cash payments that could affect your eligibility for government benefits. Considerations When Using a Credit Card for Your Special Needs Trust While you can use a credit card to access funds from your special needs trust for certain transactions , restrictions apply. If your trustee sees a charge on your card that could affect your benefits eligibility , they can flag it for review. You cannot use your credit card to pay for food and shelter, which SSI would cover. When administering your funds, your trustee must ensure that any expenditures are for your sole benefit if you have a first-party special needs trust. While using a credit card is appropriate, you should not use a debit card. Debit cards are considered cash income. Best Practices When using a credit card for a special needs trust fund, remember several best practices. Choose a card with low fees and interest rates. Set a clear budget and monitor transactions regularly. Keep thorough records and receipts of expenses. Consult with your special needs planning attorney. A special needs planning attorney can help you navigate the rules that apply to your trust and understand how to use a credit card to preserve your Medicaid/MassHealth and SSI eligibility. 

How an ILIT can help offset estate taxes

12 May, 2023
With the Federal estate tax exemption possibly about to be lowered, it may be time to think about steps you can take to keep your estate from being taxed. An irrevocable life insurance trust allows you to pass on money to your heirs while avoiding both the federal estate tax, as well as any applicable state estate tax which is currently $1 million in the Commonwealth of Massachusetts. Senate Democrats have proposed lowering the current estate tax exemption from $11.7 million for individuals and $23.4 million for couples to $3.5 million for individuals and $7 million for couples. While it is unclear if this proposal will pass, it is likely that some change to the estate tax is coming. Even if Congress does not take any action, the current rate will sunset in 2026 and essentially be cut in half, to about $6 million per individual. In the Commonwealth of Massachusetts, the current estate tax exemption is $1 million for individuals and is taxed at dollar $1.00. A proposal to raise it to $3 Million and the tax to start at $3 Million (not at $1.00) has been submitted in the legislature but has not yet been voted on or enacted. One way to make up for any estate tax your estate may have to pay is by setting up an irrevocable life insurance trust [ILIT]and funding it with a policy that has a death benefit that would pay your heirs some or all of the amount your estate will be taxed. If you purchased such a life insurance policy directly, it could end up being taxed as part of your estate. But if a trust owned the policy, it could pass outside your estate. While a life insurance trust can be highly beneficial, it is also complicated to set up and maintain properly. The following are some of the requirements: Trustee . If you are setting up the trust, you cannot also serve as a trustee. If you are the trustee, you have control of the trust, which could lead to the trust being included in your estate. You will need to name another trusted person or financial institution to act as trustee. Policy ownership . The trust must own the life insurance policy. If you transfer an existing policy to the trust and die within three years, the policy will still be considered a part of your estate. To avoid this risk, the trust can purchase a policy directly rather than receive an existing policy. Premiums . You need to transfer funds to the trust to pay the policy premiums, which creates an issue with gift taxes. A transfer to a trust is usually not subject to the $15,000 yearly gift tax exclusion. For a gift to qualify for the exclusion, the recipient must have a "present interest" in the money. Because a promise to give someone money later does not count as a present interest, most gifts to trusts aren't excluded from the gift tax. To avoid this, you can use something called a “Crummey” power which gives beneficiaries the right to withdraw the funds transferred to the trust for up to 30 days. As part of the process, the trustee needs to send them a letter, known as a Crummey letter, letting them know about the trust funding and their right to withdraw the funds. After the 30 days have passed, the trustee can use the funds to pay the annual insurance premium. You run the risk of the beneficiaries withdrawing the funds, but if they know that by allowing the money to stay in the trust they will receive more money later, it shouldn’t be a problem. Beneficiaries . The beneficiary of the life insurance policy is usually the trust. Once the funds are deposited in the trust, the trustee can distribute the assets to the beneficiaries in the way specified by the trust. For example, if your beneficiaries are minors, you can wait to have the trustee distribute the assets. Keeping the assets in the trust will also protect them from your beneficiaries’ creditors. The downside of an irrevocable life insurance trust is that you do not have the ability to change it once it is set up, although the policy would effectively be canceled if you stopped paying the premiums. If you are considering this type of trust, discuss it with your attorney.
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