In estate litigation, there is a problem known as the “worst evidence rule.” When there is any legal dispute over a trust, will, living will, or power of attorney, the only person who is guaranteed to know what these documents mean is generally either dead or incapacitated. In neither event can the individual who executed the document hop up on the witness stand and clear things up - nor can they guide others to where they have placed these important documents. This is why it is critical that all estate and incapacity planning documents are well in order before any precipitating event kicks them into effect. One of the best ways to make sure the plan you put time and money into creating will be enforced is to work with an attorney and follow their advice.

How Can I Make Sure My Estate and Incapacity Plans Are Enforced?

There are a few steps you can take to increase the likelihood that the plan you made is going to be carried out. For starters, make sure that your documents are very clear. Using precise, unambiguous language is extremely important. A good attorney will know how to write out these documents in a way that prevents confusion.

It is also a good idea to spread the word about what you have done. If you make a will or trust and then shove it in a closet - or worse, a locked safe - without telling anyone, you run the risk that your loved ones will assume that you are intestate and proceed accordingly. It could take months for anyone to find your testamentary documents - at which point you have created more of a mess than anything.

When you have taken the time to make a will, the last thing you want is for someone to challenge it when you are no longer there. You made a will because you want to control where your assets go. Having your will set aside after a successful challenge can defeat the purpose entirely. Will contests can be expensive, and they can also cause lasting rifts among families that may never heal. Fortunately, there are a few tactics estate planning attorneys use to anticipate and prevent will contests. If you have any concerns about a potential will contest, it is important to let your lawyer know so that they can take steps to prevent one.

What Are Some Ways to Prevent a Will Contest?

There are a few steps that you and your attorney can take to greatly reduce the odds of a will contest. They include:

• No-contest clause - A no-contest clause in a will states that anyone who contests the will automatically receive nothing. These clauses are very effective when they are enforceable. However, judges will frequently override these clauses if they believe the person who filed a contest had probable cause to do so. Additionally, there are limited circumstances under which these clauses can be enforced.
• Capacity documentation - One of the most common reasons wills are contested is because someone believes that the testator lacked the mental capacity to execute a will. It may be a good idea to obtain a letter from your doctor or a mental health professional stating that you are of sound mind and capable of creating a will.
• Careful execution - The legal requirements regarding how a will is to be executed are quite strict. Executing a will under the guidance of a lawyer can help ensure that anyone who plans to challenge your will for improper execution would be extremely unlikely to succeed.
• Self-proving clause - This tactic involves a formal written statement by those who witness you signing your will. Such a statement should include assertions that you clearly have the capacity to make a will, that you intend to create this will as it is written, and that there is no apparent undue influence and you are in no way being forced or coerced into signing. Your witnesses must not be beneficiaries.
• Explain disinheritance - Will contests are frequently initiated by someone who would inherit from you under the laws of intestacy, but was left out of your will. You can add a document explaining that you intentionally left this person out and it was not an accidental omission. It may be a good idea to include an explanation of why.

Your attorney may recommend any or all of these steps, or additional steps depending on your particular situation.

The trope of a person who is sick and elderly, perhaps on their death bed, calling an attorney to make a will at the last possible second is best left to movies and TV. In reality, the best time to do all your estate planning is while you are young and healthy. A lot of younger adults do not consider estate planning a necessity for a variety of reasons, a big one being that they do not expect to die or become incapacitated for many years to come. However, over the past two years, it has become clear that life can be quite unpredictable. A complete estate plan, comprised of both incapacity planning documents like a living will and testamentary documents, like a regular will, can lend some predictability and stability to a potentially chaotic situation.

If I am Young and Healthy, Why Should I Have an Estate Plan?

It is not unreasonable that many younger adults find the entire subject a bit saddening. It can be particularly difficult for young people to consider their mortality, or to consider the possibility that they could become incapacitated. However, it is wise to do so. Reasons that young healthy people also need estate plans include:

• Temporary incapacity - We often think of age-related conditions, like dementia, in this area. However, temporary incapacity can happen to young people due to an injury or illness. In the event that you get hurt in a car accident, or sick with COVID, and cannot speak for yourself, you will be glad to have powers of attorney designating the person you would like to make decisions on your behalf and a living will. These documents may look different for young people, who may want more intensive forms of medical care than someone who has less chance of recovery.
• Family concerns - The unexpected death of a younger person can shake up a family in ways that the expected passing of an elderly relative would not. The lack of an estate plan can complicate the situation, leading to additional difficulties and sometimes conflict.
• Minor children - Young parents should always have an estate plan in place that protects their children. No parent wants to think of their child growing up without them, but it is better to know that your children would be well cared for.
• Conflict avoidance - When a person is incapacitated, they must rely on others to speak for them. When no one individual has been named in a power of attorney, families may have serious disagreements over how the situation should be addressed. Your parents or other relatives may have conflicting religious or moral beliefs regarding life-preserving treatment. Especially if you had not made your wishes well-known, this can lead to significant conflict and even litigation.

Even if you are young and healthy, things can change very quickly. Families and individuals alike are protected when everyone has an estate plan in place, regardless of age or health.

You may already know that there are multiple types of trusts you can use, such as revocable trusts or irrevocable trusts. In California, there are even more specialized types of trusts you can use for specific purposes. Whether you are mostly concerned with minimizing your tax liabilities or probate expenses, or worried about providing for a loved one with special needs, there is likely a type of California trust that will meet your need. A qualified estate planning attorney can discuss your options with you and determine what types of trusts are right for your estate plan.

Trusts That Meet Specific Needs

Many estate plans involve the use of more than one trust for a number of reasons. Separate trusts may be created for different beneficiaries, or to meet different needs. Some estate plans use both revocable and irrevocable trusts to pass different assets. For other needs, one of these types of trusts may fit nicely into your estate plan:

• Special needs trust - There are two types of special needs trusts, depending on who the intended beneficiary is. First-party SNTs are used to benefit the same person who initially funded it. These are often created when an incapacitated adult receives monies such as through a lawsuit settlement or inheritance but can be used as an incapacity planning tool. Third-party SNTs are a testamentary tool used to benefit another person, such as an adult child with disabilities. Either way, SNTs are used to provide for any needs a disabled person may have that are not covered by Medi-Cal or other public benefits, but without affecting the beneficiary’s eligibility for these assistance programs.
• Life insurance trusts - Irrevocable life insurance trusts are typically used to minimize an estate’s tax liabilities. By using an irrevocable trust to pass life insurance benefits, these proceeds are kept out of a decedent’s taxable estate. Additionally, the funds can then be managed by a trustee rather than being handed to the beneficiaries as a lump sum.
• Blind trust - Often used by estate planners who anticipate family conflict, blind trusts refer to trusts that are created without the knowledge of the trustee or beneficiaries.
• Charitable trusts - Charitable trusts can be used to distribute money to a nonprofit over time, with the remainder sometimes going to the nonprofit and sometimes going to an alternate beneficiary. These can reduce your estate’s tax liability, serving both your beneficiaries’ interests and the community through charitable giving.

These are just a few of the types of specialized trusts available to California estate planners. There are more options available depending on your unique needs.

Nowadays, trusts, rather than wills, are the predominant way posthumous transfers are made. Trusts offer a number of benefits, but avoiding probate is often at the top of the list. There are pitfalls to living trusts, however. One is that the trust can only control property that it owns, so any assets that have not been transferred to the trust at the time of the grantor’s death may be out of its reach. Pour-over wills can be used as a sort of failsafe on a trust by posthumously transferring the grantor’s remaining assets into the trust. If you are unsure whether your estate plan needs a pour-over will, you should consult with a local attorney.

How Do Pour-Over Wills Work?

Pour-over wills exist to back up a trust. When the grantor of a trust dies, any assets of his that have not made their way into a trust already cannot be governed by the trust. A pour-over will simply exist to gather up and control any assets that were left out of the trust for whatever reason. Using a pour-over will, the testator devises all his remaining non-trust property to the trust.

This can be extraordinarily useful when it is discovered after death that the decedent owned property he had forgotten about, or never became aware of in the first place. It is more common than one might think for assets to be inadvertently omitted from a trust. People may forget about an old bank account or own estate property from a long-dead relative they never found out about. A pour-over will simply offers a bit of extra security in making sure that all the property a grantor wanted to be included in a trust will be included.