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“Avoiding Probate” is a misleading and misapplied term. All estates in the U.S. are administered under the aegis of and subject to the laws of the jurisdiction in which the decedent was legally resident. There are no exceptions to this fact of which I am aware.Assets and property that belonged to the decedent may or may not be legally part of the estate and may therefore not fall under the jurisdiction of the probate court. This is when it’s appropriate to invoke the phrase at issue. For example, almost all commercial bank accounts in the U.S. can be assigned a beneficial designation by the account owner. Once an account owner has completed the beneficial designation process, the designation becomes part of the formal title of the account, often using language like “for the benefit of” or “transferable/payable on death to.” Since the disposition of any assets in the account has already been legally prescribed at the time of the decdent’s death, these accounts can be said to “avoid probate.”Most assets can be given beneficial designations. People just don’t often make them before they die. In Oregon where I live, you can easily and cheaply add a codicil concerning its disposition upon your (the owner) death, to the deed of your home. Thus a house with a “transferable upon death deed” that was written and lodged legally would also, then, “avoid probate.”In the end, the proper and legal administration of estates after somebody dies depends on the good faith actions of the executor identified in the will or the court-appointed representative if the decedent died intestate or the named executor declines the position. In both cases, the executor or representative is subject to the provisions of the probate code concerning their duties and to the court of jurisdiction’s oversight. Assets that transfer from the decedent to a new owner by virtue of beneficial destination still don’t fully “avoid probate,” since any disagreements, conflicts, errors or irregularities related to them would be adjudicated by the probate court with jurisdiction over the estate.

To take the question a bit further; suppose one of the children have learning difficulties and the other no issues relating to health and therefore able to get good grades. Would you leave a greater amount to the one who advanced more, or had the serious need?To me it is largely irrelevant, since the money should be split equally, as that is fair.Since I was 35 I have serious problems with employment due to the development of epilepsy which has basically screwed up my career. Before that I was a professional Credit Manager/Consultant, who helped companies and business in financial distress. I also worked in Consumer Credit for those people in financial difficulties, but also “professional defaulters”, the latter who take out an agreement, pay the first two instalment and then default on the agreements thinking they will not be pursued by moving around the Country.Between the ages of 16–19 I worked in retail banking, but never got further than being a cashier and I got bored and the regime so rigid that I could not move “sideways” within the business, so I left. I went travelling with my father as “supernumary” on board his commercial Merchant Vessel, and jumped from port to port, picking up the vessel’s next Berth and re-joining the ship doing work on the vessel, and then being “dropped off at the next port.That way I got to explore West Africa and Europe. In part for free (my accommodation and food part of my employment (and very good food I hasten to add), and I got a nominal pay for doing odd jobs around the ship. That probably set me up for adult life than anything else. It meant that between ports of being picked up and dropped of (hundreds of miles), I got free transport; but in order to get to the port where I needed to re-join the ship, needed to get to that port in time, not to mention find which berth it was in. Some countries’ Ports are not well organised and do not record the berth a vessel is in, merely that it is in that dock.At the age of 21, when I got back from these escapades, I found work with Credit Company, for a “correspondence clerk”; completely away (I thought) from banking. However I fell in to Credit Control at litigation level, dealing with serious default (more than six months) to the point where litigation was required to secure the debt. That meant handling both professional debtors as well as those who had got in to difficulty through circumstances as opposed to deliberate non payment of debt. These types of default needed different management to those who were clearly “professional” defaulters.I have stayed in that business up to now. However, I worked freelance for a while assisting companies/businesses in financial distress, or helping the set up of new operations, so from that point of view my actual employment have been broken. I applied for a job setting up a Credit Control Department for a small business, and saw them grow from that to a fully quoted Public Limited Company (quoted on the London Stock Exchange).Then “Big-Bang” happened to me, when I took a massive epileptic fit (nearly killed myself in the process), on the company site. Suddenly I was seen as a risk and they could not get me of the door fast enough. In fact I did successfully sue for “Constructive Dismissal” (as it is referred to in the UK) and won; although we made an out of Court Settlement just before the hearing. However since I had issued the Summons, it is still a registered matter on the Court books.Since then I have had a very broken work record and periods of long term unemployment, not to mention two years ago having to nurse my father through his final days. That has changed employers’ attitude towards me, as being unreliable, despite the fact that where I have been take on contract on the whole I have been successful. However my income has never has been as great, nor as sustained as my sister.My sister went in to teaching, and remained in that profession indeed school all her life. Starting as a training teacher, leaving as a Year Head, and a position of importance with a substantial salary. I do not bear her grudge for that because teaching is bl**dy hard work, not to mention dealing with not just stroppy children, but equally aggressive parents !To that end my sister could be seen as more successful in terms of stability of employment and her final salary. My situation is not so great by a long chalk, however that does/did not make me any less successful in the field I am in. Although not married with a wife and a nice 3 bedroomed house (in fact alone and a 1 bedroomed flat), that does not make me less successful.I have saved a number of companies from insolvency and therefore jobs; I have also secured three successful convictions against parties and members of staff taking unfair advantage and committing fraud. I have built companies from the ground and seen them through to fully floated Stock Exchange quotation.So does that make me any less successful?I may have not earned anything like what my sister has over the years, and in comparison lived a far more modest life, and not so many “extras” like a large car and house, able to afford big holidays, as well as retire early when she finally got fed up with teaching because of the Government interference and bureaucracy. She found that she was no longer teaching, but filling in forms and having to comply with stupid rules and regulations. Again not teaching but a professional form filler. She left, I believe very much to the loss of the school.I am still looking for work and do not have the money my sister has, but as I say do not begrudge what she has done and achieved; again that doesn’t mean that I have not succeeded, just in a different way.Although my father had initially seen me as a failure as soon as I left the bank, equally when I got in to the business I did. Certainly when I went in to commercial debt recovery; he realised that the job I did was a complex and demanding as my sister, but just not the same way. I see neither of us as a failure, and finally neither did my father.Perhaps, ironically my late mother (who died before my father) did not work after my sister was born and became the proverbial “house-wife”. Not paid, but still a b**dy difficult job, particularly with me being an epileptic and also prone to breaking my arm due to a weakness in it where any sort of fall resulted in a fracture. Also trying to keep the peace between two children who were 5 1/2 years age difference and in our pre-teen years needed escorting around the house so that we did not “kill” each other. Not to mention dealing with an unstable husband (our father) who treated us (his children) as if part of his crew and disciplining us the same way.In fact in hind sight it is a miracle that the marriage survived, in every sense, certainly I nearly ran away from home; my sister could have committed suicide. As I say in my Credential “son of a sane mother”.The point of relaying all this is that although my father had told my sister that I had been written out of the Will (due to them fore ever arguing). When we found it, the document had been re-drafted and we did indeed share the Estate on a 50/50 basis. To that end he did recognise that on paper, my sister may have gone further than me academically, and achieved a lot; equally my successes were more subtle but no less important, just not as well paid.To look at it in those terms, why should your children (no matter how many) be treated on the basis of their success?Many would argue that treating them differently on their success would encourage them to be more successful. However would counter-argue that actually all you are going to do is cause more in-fighting when the children are in their teenage years. Perhaps more to the point suppose one of them had a severe learning difficulty; are you going to penalise them, as you see that child as less successful?So to conclude, in my view your children are equal in terms of love and affection, and certainly should not be “discriminated” by the fact that you see one as less successful than the other. To that end they are entitled to an equal share of the late parent(s) Estate.Certainly had my sister and I had children (we haven’t, she got married and they decided not to start a family, and I have never found anyone who loved me enough to stay with, let alone start a family. So in this scenario, I have no one to leave the money to when I die; and my sister would probably leave money to her husband (assuming he survived her); and may be I would be left a codicil in the Will as a nominal payment. On the other hand, if her husband was to die first as well as me, then who would she leave it to?The cat’s/ dog’s home?Neither of us will leave it to the Government/Tax Man- they have screwed us up during our working lives; why should they get any more ?!The same goes for me, I do not have a lot of money in the bank, but I do have the fixed asset of the house, and perhaps a small death benefit in my pensions. So assuming my sister out lived me, then I would leave my Estate to her; and I hope vice-versa. Equally, supposing we all died together and we have no surviving line, no children and probably no cousins either they are all at least 10 years older than us, so statistically my sister and I out-live them; we cannot leave it to them.So certainly I intend to spend what I have got in my old age, if necessary sell the flat and lease it back on what in England is known as an “Equitable Mortgage” also known as Equity Release. That is a mortgage where you sell the house to a housing association and rent it back, but if you default on payment, their is no foreclosure or repossession clause, the arrears just build up until you die. When they come to sell the house upon my death, the money raised pays off those arrears, and any surplus goes to the Crown (tax man).Why leave them all the money?

A last will and testament is a document stating a deceased person’s wishes after they’re dead. An important part of estate planning, wills contain a legal mandate for how the deceased’s property is to be distributed. This includes naming beneficiaries, the people or organizations you want to inherit your property after you die.Some beneficiaries will receive specific bequests, and others will receive the residuary estate (remaining assets) divided up as you choose.If you’re disappointed with your share of the estate, or if you feel you were wrongly excluded from the will, then you may be able to contest the will. Contesting a will means challenging its terms in probate court, usually with the help of a lawyer.However, most contentions are not successful. You can’t just contest a will because you want to — you need to have a legal basis for your claim. And you may only have standing if you’re named in the will already, were named in a previous will of the decedent, or would have been eligible to inherit property had a will not existed.In this article:Who can contest a will?How to contest a willHow to prevent your will from being contestedWho can contest a will?To have standing to contest a will, you need to demonstrate that something about how the will was written may be illegal. While the distribution of assets may have been unfair, you won’t have standing if the will is ironclad.The following people — “interested parties” — have standing to contest the will:Beneficiaries already named in the willBeneficiaries named in a previous will, who were written out of the most recent version of will, or whose share of the estate was significantly decreased by the newest willAnyone not named in the will but who, because of the state’s intestacy laws, would be eligible to inherit property if a will didn’t exist. This usually means a spouse or child.If you do have standing, you also need a good reason to challenge the will. Legal reasons for contesting a will include the following.Build a legacy for your family. Get your estate plan right.With Policygenius, you can create a tailored will using attorney-approved tools, without the attorney price tag.START YOUR WILL TODAYThe testator was not mentally competentThe testator, the person to whom the last will and testament belongs, must be mentally competent when writing out the will.If the testator is of sound mind when writing the will, he or she is considered to have testamentary capacity. That means he or she understands the consequences of writing a will and assigning beneficiaries as well as the nature of his or her estate.The testator was under undue influenceIf a relative takes advantage of the testator, by maliciously persuading them to bequeath a larger share of the estate, this is called having “undue influence.” If a will is the result of coercion, it may be challenged in court.Laws were broken when writing the willA will that is not legally valid can be challenged in court. To be considered valid, the will must follow certain laws:Wills need to be properly signed by two witnesses to be considered valid. (In some states, the witness can’t be a beneficiary.)If the testator made a modification to the will, the new will also needs two witnesses to sign it.The testator has the right to distribute the property named in the will. In community property states, the testator generally isn’t allowed to distribute property acquired during his or her marriage if his or her spouse is still alive.The testator was not tricked into signing the will.Forged and fraudulent wills are also not valid. Holographic wills, which are handwritten and may not contain all the necessary legal formalities, may be considered valid in some states if the probate judge approves, but they are more vulnerable to contest.There is a more recent version of the willWhen the testator modifies the will, the modified will often revokes all previous versions of the will. Only the most recent version of the will is valid as long as it has been properly created.One way to modify a will is to add a codicil, but this doesn't not automatically revoke previous versions of the will, and it may be better simply to create a new will to avoid confusion for your heirs.(If you need a new will, try the new Policygenius app. Our attorney-approved tools can create a will for just $120.)The will is incompleteIf certain legal standards are not met in the will, it may be considered incomplete. That could mean failing to sign the will, leaving blank spaces where beneficiary names should be, or simply omitting text where needed.How to contest a willDepending on your state, you may only have a limited amount of time to contest a will. The clock starts ticking after you receive notice of probate, meaning that the deceased has died and his or her assets are being distributed per the will.You need to file your claim during this time, which is usually referred to as the statute of limitations. Once the statute of limitations has run out, you’ll have few options for legal remedy.An estate planning lawyer will file the claim on your behalf. Lawyers cost a lot of money, and they could take a large cut of your financial gain, amounting to thousands or even tens of thousands of dollars. But an attorney can save you a lot of time and effort as well as make it more likely that you’ll win the contest (or warn you if you they think it’s unwinnable).Whether you go through an attorney or not, the claim must be submitted to the probate court in the county where the deceased died. A court clerk should be able to point you in the right direction and provide the paperwork you need to file the claim.Note that contesting a will may require you to undergo many of the same legal proceedings as other civil trials. You may need to sit for a deposition, and you may be required to submit evidence on your behalf during discovery. Be prepared to dig up documents proving your case as well as any other items requesting by the opposing counsel. You may even be asked to give testimony on the stand.SettlementContesting the will is likely to fail, and it could delay probate for a long time, by months or even years. Because of the delay, some beneficiaries may agree to a settlement with you instead.The settlement will likely be smaller than the amount you’d get from a successful challenge, but it would save you legal fees and help you avoid a protracted probate process that could fray your relationship with your family.What happens after the will contestIf you win the will contest, then you take control of the assets you claimed. That could mean, for example, receiving a check for the cash you’re owed, or direct deposit into your bank account.Any real property you won in the contest will be transferred to you. Make sure your name is on the title to the property and that the amended title has been properly registered with your county. If a house still has a mortgage on it, make sure you assume responsibility for payment and that the lenders are aware that mortgage statements are to come to you.But if you lose the will challenge, you could be disinherited from other estate property that you’re owed. (See below.) And if the other beneficiaries appeal, prepare for another lengthy and costly trial.How to prevent your will from being contestedBut if you’re the testator, you’ll want to make sure your will can’t be contested. That means following all the legal formalities that remove ambiguities from the will, which may require a lawyer. You could also take the following steps:Add a no-contest clauseThe no-contest clause doesn’t mean no one can challenge the will. But it does mean that anyone who does mount a challenge will be completely disinherited if the challenge fails. This disincentivizes beneficiaries from contesting a will just because they were unhappy with the size of their bequest.Get it notarizedYou’re not required by law to get your will notarized. But doing so “self-proves” the will, meaning that a challenge will be much harder. However, a notarized will may still be produced under false circumstances, so notarization only gets you so far.Learn more about notarizing your will.Make your assets payable on deathYou can add beneficiaries to your savings and retirement accounts, making the accounts payable upon your death. Payable-on-death accounts (also called transferrable-on-death accounts) do not go through probate as long as the beneficiary is still alive, so the beneficiary has a right to them regardless of the will.