Partner’s brother could swoop in and claim estate if there’s no will
The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.
Q: My partner’s will gives me our home (currently in his name only), and it leaves me some money. Neither of us has any children or living parents. Can his brother successfully contest his will or bankrupt the estate in probate?
A: Before answering your question, it is important to point out that your partner is free to leave his estate to anyone he chooses. There is no law requiring him to leave his property to his brother.
However, if your partner were to die without an official will, then his brother would likely be the person who would inherit everything. Therefore, the brother would have a fairly decent incentive to file a contest and try to get the will declared invalid. If your partner has no prior unrevoked will, he would then die without a will.
How much you would need to spend defending the estate is an unknown. Whether the brother would succeed in his contest is another unknown.
Fortunately, though, there are steps your partner can take to prevent a lawsuit from ever occurring.
First, your partner should hire a knowledgeable attorney to prepare the will. There’s no reason for your partner to try to write the will himself. Also, a will must be properly signed, witnessed and notarized. Otherwise it can be declared invalid. Writing it himself, and getting it signed, witnessed and notarized without an attorney, is just asking for a lawsuit.
Second, your partner should consider giving his brother a specific bequest of cash and then provide that if he contests the will, he forfeits the gift. That would present the brother with a tough decision: whether to contest and possibly win everything, or let the probate proceed with no contest and keep the cash bequest. The trick is to have a large enough bequest, when compared to the rest of your partner’s estate, to keep the brother from suing.
Third, your partner should consider revising his will every six months or so, each time giving his brother a little bit more money. That way, when your partner dies, if his brother succeeds in contesting your partner’s last will, the next to last will would then apply, and that will would give the brother less money. And if he successfully contests that will, he would receive even less from the next prior will. And so on, and so on.
Fourth, if possible, you should stay completely out of the picture. It is best if you never speak to his lawyer or write the lawyer a letter or email. Unless absolutely necessary, don’t drive your partner to the lawyer’s office. You should not pay for the will to be drafted, either. Don’t even help find a lawyer.
None of these actions are illegal. It’s just that if you do any of these things, it might look like you are trying to unduly influence your partner’s decisions, and you will need to explain why you were involved.