Making the Argument

The Hard Truth: Plan Well and Avoid the Family Feud

By Michelle Fulton

October 2, 2004

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: A few years ago, my grandfather passed away and left a small estate. He had spent a small fortune making a will, which left everything to his grandsons. After his funeral, one of his daughters decided to contest the will when it was probated. The court battle ate up the remainder of his estate.

Now, my wife and I are getting ready to make our wills, but we are afraid that one or all of our children might contest the will and leave whichever of us is left with nothing. Is there anything we can do to prevent this? I don’t want either myself or my wife to end up out in the cold.

A: Actually, there are several things you can do. First, see an attorney and execute a properly written will. Attorney’s who prepare wills have formalities to follow to ensure that the will is virtually airtight. Make sure you ask for a no-contest clause and a self-proving affidavit.

A no-contest clause simply says that if anyone contests the will, they get nothing. Now, mind you, this is not fool-proof. Texas courts have allowed will contests in spite of the no-contest clause, but those were extreme cases where there was clear duress or lack of mental capacity on the part of the deceased.

The self-proving affidavit is a signed, sworn statement executed by you and your witnesses immediately after the will is executed. The affidavit states that all of you signed the will in accordance with the requirements of the state of Texas and that you signed it freely and without duress, and that you were of sound mind. The affidavit is wonderful because it makes the will self-proven, which means that when it is admitted into probate the presence of the witnesses in the courtroom is not necessary.

Without the affidavit, your witnesses would have to show up in the probate court and testify under oath that you signed the will and they witnessed it. If one of the witnesses is deceased and the other witness is someone who is set to benefit from the will, the court might invalidate it. So, the self-proving affidavit is a critical tool.

Also, when you do execute a will, here are some rules of thumb to follow: First, use witnesses who are not set to receive anything under your will. Second, use witnesses who are of sound mind, and the younger they are, the better. As a rule, I don’t allow relatives to serve as a witness.

If you are still uneasy about whether any of the children might contest the will, consider some non-probate alternatives. Non-probate assets are things such as life-insurance, payable on death (POD) bank accounts, IRA’s, 401K’s, and various other pension, annuity, and deferred compensation plans.

If you invest enough of your income into these types of assets and name each other as the beneficiary, then upon your death the money in those accounts goes to your wife automatically upon receipt of the death certificate. The children could not lay claim to those funds except in extremely remote circumstances (i.e., you still had a child support obligation or you had an adopted child and you didn’t have enough assets in your probatable estate to cover your child’s share of the estate).

These tips are just a few of the safeguards you can employ in order to prevent a family feud and protect you and your spouse from the additional stress of a will contest. However, the absolute best way to protect your interests is to consult with an attorney who practices in that area, and create the plan that best fits your needs.

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3, Houston, Texas 77058.

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