Who doesn’t love the Super Bowl? Millions and millions of viewers watch
the Super Bowl every year, and it has been a national pastime in America since 1967. While the ups and downs of the famous game draw us in, you probably want to keep your real life shock-free. 

One of the most unpleasant surprises in life is being faced with a lawsuit. Hopefully, you have never been sued, but those who have know that it is an extremely stressful event. In this article, we’ll talk about ways you can “lawsuit-proof” your estate plan. 

Note that none of these tips is 100% foolproof. Like with what we might see at the Super Bowl, someone could get past your defense. But, as they say, the best offense is a good defense.

Wait…You’re Saying Someone Might Sue Me?

People fight. That’s the hard truth. It’s not unheard of for heirs to fight over an estate plan. And, in the legal world, a “fight” almost always means a “lawsuit.” Whether driven by grief or a misguided belief that they’re being swindled, heirs slap each other with lawsuits all the time.

This could have disastrous consequences. Your estate could be tied up in court battles for years, and litigators’ fees aren’t cheap. Not to mention, depending on the court where you live, your “dirty laundry” could be made public record. All this is added on to the toll that family drama takes on your loved ones. 

To lower the risk of lawsuits, there are some simple precautions you can take. This might not lower the risk of someone being unhappy, of course, but it could stop that unhappiness from turning into a lawsuit. 

Trusts Instead of Wills 

This first tip is more a case of problem prevention than problem-solving. A trust doesn’t need to go through probate court after you die, but a last will and testament does. 

The probate process can give rise to all types of thorny issues regarding the executor’s duties, asset division, splitting the expenses, and more. Basically, probate gives an already fragile family dynamic a stick of dynamite. Trusts bypass this process, which is unpleasant even for the most cordial of families. 

Estate Planning Letter(s) of Instruction 

An heir might contest on the grounds that your estate plan isn’t “what [you] would have wanted.” There’s an easy way to avoid such a contest, and it is to create a detailed “estate planning letter of instruction.” This letter will give your executors all the information they need to administer your estate. 

Topics covered in the letter can include passwords to accounts, subscriptions you need canceled, keys to safe deposit boxes, people to contact in the event of your death, and how your personal effects should be divided. 

If you feel it’s necessary, you can even explain why you want your family to end life support if you’re in a coma. Some letters of intent even go so far as to explain unevenness or “favoritism” in the will. A letter of intent will clear up confusion that could lead to a lawsuit.

Provide for Disinheritance

Essentially, disinheritance is when you leave a family member—who would have expected to get something in a will—absolutely nothing. There are some limits. First, in Florida, you cannot disinherit a minor child. Florida doesn’t want kids left homeless and penniless, and family disputes with minors aren’t usually serious enough to warrant as drastic a step as disinheritance.

Secondly, you can’t automatically disinherit your spouse. Your spouse must agree to get nothing from your estate, either in a Pre- or Postnuptial agreement. This probably won’t surprise you, but spouses usually don’t agree to that. 

Any legal disinheritance should be provided for in your estate plan, but be careful giving a “why” for the disinheritance. A court could find the reason you give is contrary to public policy and re-inherit the person.

Check Ownership of Assets

This is a simple one. You can’t give away something you don’t own. Make sure to check and re-check that you own the assets you’re giving away in your will or trust. Checking ownership will avoid a lot of legal tangles. 

Establish Mental Competency

In Florida, you must have “testamentary capacity” to create a will (among other requirements). Heirs will sometimes challenge testamentary capacity, claiming that the writer didn’t know what he or she was doing at the time. 

If this sounds like something your family might do, consider agreeing to an examination by a geriatric psychiatrist. That way, there will be no doubt of your competency.

Don’t “DIY” It

We might sound biased, but attempting to create a legal document without the help of an attorney is a bad idea. Don’t do it yourself, as there are a lot of minor technical aspects of the law that are easy to miss. Any little error could provide basis to challenge the will, depending on the situation. Contact an attorney to make sure it’s done properly the first time. 

Talk to Your Family 

A lot of knock-down, drag-em’-out lawsuits happen because the family is shocked at the results of the will. The shock and disappointment, compounded with feelings of grief, is a powerful combination. It’s best to make sure your family is not surprised by the terms of your will or trust. Talk to them beforehand so that they know what to expect. They don’t have to like it, but they should at least be prepared.

While this list is by no means exhaustive, they provide a few ways to soften the blow, especially if your estate plan contains news that your family might find unwelcome. Note that there is no “No Contest” clause in Florida (§732.517), and such a clause is unenforceable. Talk to an attorney to learn more. 

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