Planning for one’s death is important to avoid time consuming and often costly probate. However, creating a will or trust can be easily subject to undue influence. The client may not even know they are being manipulated. When the drafting of an estate plan begins, an ethical estate planning attorney will always be on the lookout for red flags that may hinder a person from signing, isn’t in their own best interest, or that will lead to costly or manipulated probate proceedings.
1. Medical or Cognitive Impairment
The one key proponent for any legal document is the ability to sign under a sound mind. If after one’s death it’s discovered that the signer was not of sound mind when they signed the document, it could lead to costly litigation. When an individual drafts a will, always make sure they are not mentally impaired or living in a mental care facility.
2. Odd Changes
After an estate plan is completed, large or irregular changes might prove that the signer is being manipulated into altering it. Changes that might raise a red flag include the disinheriting of a family member, adding someone out of the blue, or shifting major assets from one person to another.
3. Who Made the Appointment and Who is Making the Decisions
It is always in the best interest of the person creating the will for that person to actively want to create the will on their own. If a family member, friend, intermediary, or nurse sets up the appointment and is making all the decisions for the signer, those decisions are probably not the true wishes of the signer.
4. The Creation and Signing is Being Rushed
Creating an estate plan should not be an urgent matter. There are a lot of considerations to make that might be overlooked if the will or trust is rushed through the process. Family or friends who may be eager to get a will signed, refuse to answer questions for expediency, or are trying to rush the process in any way do not have the best interests of the signer in mind.
5. Property with Joint Tenancy is Encouraged
Attempting to add assets into a will or trust that are jointly owned will do nothing but cause major issues during probate. Anyone pushing to include jointly owned property, such as a home, car, bank account, or even debt, may simply be looking to force a contention, which will lead to long, drawn-out and expensive probate hearing.
One of the above red flags on its own probably isn’t enough to keep an ethical attorney from drafting a will. However, if multiple factors arise, the motivations behind the estate plan must be addressed to determine the client’s capacity to create and sign the document and guarantee the estate plan isn’t being created under undue influence.