Christopher W. Yugo, Times Business Columnist answers a frequent question in estate planning:
Q: I intend to leave all of my money to two charities but I’m concerned that my children will object. I’m worried they will challenge the will. Is there anything I can do to make sure that my wishes are carried out? Should I name someone other than a child executor?
A: First off, you can leave your property to whomever you want. If you want to leave it to a charity or the neighbor, you can do it. Now don’t get me wrong, I understand why a child might be upset they are excluded. However, that doesn’t mean that you can’t or shouldn’t do it.
As I’ve written before, will challenges are rare and successful will challenges are even rarer than that. There really needs to be a compelling reason to set aside a will. For example, a will can be set aside if it can be shown that the testator was subject to undue influence or if he wasn’t competent to execute a valid will in the first place.
I wish there was a magic bullet to prevent a will challenge, but there isn’t. If your kids want to challenge your will, they can do it. Fortunately, or unfortunately if you are the child, will challenges are expensive. That in itself could be enough to discourage a challenge.
I suggest you discuss your options with your attorney. He or she will be able to help you plan for trouble. Your attorney may suggest you obtain a letter from your doctor demonstrating your competency or perhaps suggest a video recording of the will signing be made. The attorney will almost certainly want to meet with you alone so the chances of a successful undue influence claim are greatly reduced. The key is bringing your concerns to your attorney’s attention.
As for naming someone other than a child personal representative, I’m kind of torn. On one hand, naming a child personal representative may help your family understand why you were so charitable. On the other hand, it seems a little twisted to request a child you disinherited to administer your estate. If you decide to name someone other than a family member, you could contact your bank’s trust department and inquire about it serving as personal representative. The bank will do its best to assure your instructions are carried out.
Finally, you might consider discussing it with your family ahead of time so they aren’t surprised when you pass. Maybe explaining to them why you are leaving your property to the charity will help them understand and perhaps avoid hard feelings, and possible litigation.