When you make estate plans during your lifetime, your goal is to make the probate process as stress-free as possible for your surviving loved ones when you die. Usually, a valid will and other estate planning documents mitigate a lot of potential questions and controversy in probate court. However, estate planning fraud and probate fraud do happen, and they can leave your family devastated.
Estate planning fraud can be easy to spot and prevent if you know what to look for and take the steps to be more secure. Below we outline the different types of fraud and how you can avert it to save your family from a harrowing process.
What makes an estate planning document fraudulent?
Your will is a legal document that states your plan for the distribution of any assets where you have not already named a beneficiary to receive them (e.g., you might name a spouse or adult child as a payable or transfer on death beneficiary on your retirement account or life insurance). Assets where there is no named beneficiary or assets like your personal belongings which can’t be designated prior to your death to someone pass through your Will and under the supervision of a probate court. These decisions are yours and yours alone to make, and even if you ask others for their opinion, what is represented in the will should be a reflection of your true wishes.
Of course, it’s easy to see why a relative might be unhappy with a loved one’s estate planning decisions, especially if they feel they deserve a larger share of the estate. This is what often leads to fraud attempts, both during the estate planning process and during the probate process after someone has died.
A fraudulently-executed will is considered invalid during the probate process. These circumstances can lead to a lengthy litigation in order to determine the validity of the will.
There are a few things that can classify a will as fraudulent:
- Forged signatures – One way for a will to be fraudulently executed is if it was signed by anyone other than the person who writes the will, known as the testator. The testator can be assisted with making “their mark” or “signature” on the Will by someone else but only at the testator’s direction and in the presence of two witnesses and a notary. In Virginia and other states, wills are required to be signed in the presence of two witnesses. Ideally, a notary should also be present. If the will’s validity comes into question, the witnesses can be questioned and testify about its execution and determine any fraud. If a testator cannot physical sign without assistance, it may also be prudent to consider making a video record of the signing to establish capacity and overcome later challenges to the Will’s validity.
- Undue influence – Undue influence is when the testator is persuaded by another person to change their will and their actions are no longer of their own of their free will. Often this happens within the elderly population and amongst the wealthy. Signs that a testator may be a victim of undue influence are sudden cut offs in communication to the family and spending quality time with a new person who is then added as a beneficiary to their will.
- Lack of capacity – When signing a will, the testator must be of sound mind. They need to have the mental capacity in order to sign and understand the purpose and implications of the document. If a person is not of sound mind when they sign the will, it can be considered invalid. The level of capacity to sign a will is relatively low, however, and it can be difficult to prove that there was a lack of capacity to the court.
After you’ve passed: Examples of probate fraud
While you may be able to prevent estate planning fraud during your lifetime, someone may still try to commit probate fraud after you’ve died. This is when someone tries to submit an improper, invalid, or forged estate planning document to the probate court for their own benefit.
Below are some examples:
- Will contest: A party may try to challenge an entire will’s validity.
- Executor fraud: The estate executor makes false claims about the content of the document or has overcharged the estate. A probate attorney can obtain the right to seek evidence to prove the crime.
- Former will submission: Someone attempts to enter a previous version of a will to receive property that is not designated for them in the most up-to-date version.
- False codicil: A codicil is a document that makes a change to an executed will. A false codicil may be brought forward to give someone a substantial inheritance that is not rightfully theirs, according the valid version of a will.
Can I prevent estate planning fraud?
The best way to prevent probate and estate planning fraud – or at least reduce the likelihood of it occurring – is to have transparent, honest conversations about your wishes. While planning and writing your will, be sure to openly share your plans with your named executor, your family members, and anyone else who may be included in your will.
You should also update your loved ones every time a significant change is made. That way, everyone can be on the same page regarding your plans, and they’ll be better able to detect if someone is trying to commit fraud during the estate planning or probate process. With the ability to create a digital image of your estate planning documents, it is easier than ever to share an updated Will or other estate planning document by means of a thumb drive or a secured link using an email.
Contact an experienced estate planning attorney for help.
The Law Office of Patricia E. Tichenor has helped Virginia residents for nearly two decades to understand how to avoid fraud issues and contests in addition to preparing wills, living trusts, powers of attorney, and other critical estate planning documents. Contact us if you need assistance with your estate planning needs. We can meet you for a home consultation if needed, and all our initial phone consultations are free of charge.