Albuquerque Contingent Will Lawyer

A contingent will activates when a certain condition described in the will occurs. The person who creates the will (called the testator) may want the will to come into effect only if they die from a certain event, such as during an upcoming trip.

They may also create a will that activates when their primary beneficiaries (e.g., their children) are no longer alive by the time they pass on.

Contingent wills have become less common over the years, mostly because there are alternatives besides creating an entire “backup” will. Testators can instead include a contingency clause in their will that describes how to distribute certain property under specific conditions.

They can also name contingent beneficiaries in the event that their first choices are unavailable. There are other options as well, including describing a contingency trust or creating a contingent distribution from a pre-existing trust.

An Albuquerque contingent will lawyer can help you understand all of the options available to you. With their guidance, you can then select the ideal estate planning arrangements with respect to your goals and your unique situation.

Schedule a confidential case review with no obligation when you call New Mexico Financial & Estate Planning Attorneys at 505-503-1637 or contact us online.

Questions to Consider With Your Albuquerque Contingent Will Attorney

The entire purpose of a contingent will is to imagine the future and decide how to respond to specific scenarios. Working closely with an Albuquerque contingent will attorney can give the foresight to anticipate a wide range of possibilities. They can also advise you on the best ways to respond to these situations, speaking directly from their experience on cases they’ve handled.

When creating a contingent will — or conducting any estate planning activity — the important thing to focus on is: what would you like to see happen, ideally? Many people approach their will creation without clearly defining these target outcomes, or they focus completely on specific outcomes, like who gets their house, while losing sight of other important factors.

An Albuquerque contingent will lawyer can provide you with guidance to concretely define your goals along with the situations you want to prepare for. They can then expand your focus by drawing attention to other scenarios, options for responding to them, and critical estate planning elements to consider.

While meeting with your attorney, they can help you answer key questions like:

• What assets need to be disposed of (i.e., transferred) through my will, as opposed to assets like life insurance benefits that distribute automatically?
• With consideration for my primary (non-contingent) will, what scenarios would cause drastic changes to my plans? Would they involve my death? My assets? My beneficiaries? Perhaps a combination of the above?
• What would I want to happen to my assets (or specific assets) if the upending scenario occurred? Would there be changes that would affect my entire will? Does that affect select assets? Select beneficiaries? Some combination thereof?
• Could I prepare for an adverse scenario by lining up a backup beneficiary rather than creating a whole new contingent will?
• Could I prepare for an adverse scenario by describing what I would want to happen to a specific asset in my will rather than needing to make changes to all assets or beneficiary designations?
• Would I be interested in a trust? These can provide highly specific instructions for how and when to distribute assets, and they can also make it possible to delay the distribution of assets until a later date — or until the occurrence of a specific event, like a child’s college graduation.
• How would the contingent will affect any existing estate plans? Would I be happy if a court ruled that my contingent will was the only will they were going to follow?
• What language can I use to eliminate any ambiguity as the scenario that would activate my contingent will? Is there anyone in the family (especially your executor) who might accidentally misinterpret the contingency as described?
• Is there anyone in my regular will who might be adversely affected by the activation of a contingent will? If so, how can I anticipate and seek to avoid a possible will contest?
• What other relevant components of my estate plan would affect or be affected by the existence of a contingent will?

The answers to these questions are complex, and they would depend entirely upon your unique estate, family, beneficiary plans, and goals for your legacy. Without the right preparation, a contingent will could cause dramatic and unintended changes to your estate.

Or, it could sow confusion (or even resentment) among heirs. To prevent these unwanted outcomes — and ensure that your wishes can be met even when an unlikely event occurs — you can work with our experienced Albuquerque contingent will law firm.

What Is a Contingent Will? How Would It Work in Albuquerque?

A contingent will, also sometimes called a conditional will, is a will that describes a condition that would cause all other wills to become obsolete. If this condition is met, the contingent will take the place of these wills, instructing the testator’s personal representative as to how to dispose of their estate.

In legal terms, a contingent condition is one that is defined as:

Possible, but not assured; doubtful or uncertain, conditioned upon the occurrence of some future event which is itself uncertain, or questionable. Verdier v. Roach, 96 Cal. 467, 31 Pac. 554. This term, when applied to a use, remainder, devise, bequest, or other legal right or interest implies that no present interest exists, and that whether such interest or right ever will exist depends upon a future uncertain event Jemison v. Blowers, 5 Barb. (N. Y.) 692.

Importantly, this definition also recognizes the fact that if the contingent condition is not met, then someone has no legal right to receive an inheritance (bequest) or a transfer of real property (devise) from the contingent will.

Examples of Conditions That Might Activate a Contingent Will

A contingent will might be considered useful in the following scenarios:

• The testator dies much earlier than expected as a result of an accident or other unfortunate incident. Accordingly, they ask that surviving beneficiaries help manage their estate in ways they otherwise might not have requested, such as by taking over a family business the testator intended to sell once they reached retirement age.
• A sole beneficiary or other priority beneficiary, such as a spouse or only child, has died before the testator. Since the testator cannot leave everything (or almost everything) to this person, they have to leave their estate to the people named in their contingent will.
• The testator has died while a dependent, such as a disabled adult child, is still living in their residence. The contingent will can leave the home to someone else but specifically grant permission to the dependent to continue living in the home for the remainder of their life.
• An asset that was highly valuable at the time a primary will was created, such as a small business, cannot be liquidated at the expected price. Accordingly, the testator wishes to leave other property to the intended heirs to compensate them fairly for the unexpected loss in value.
• A charitable organization that the testator intended to support is no longer operating. Therefore, they want their assets to go to another charity or beneficiary.
• The testator dies while a beloved pet is still alive. The testator can specify that a beneficiary can only claim their inheritance if they agree to care for the pet until it passes of natural causes.

Problems That Can Arise From a Contingent Will 

For various reasons, a contingent will might be discouraged by an attorney who is assisting you with the management of your future estate. The most likely reason for not using a contingent will is that it adds unnecessary complexity, ambiguity, and effort for your estate’s personal representative.

If the personal representative struggles with any problems, there is a possibility that the contingent will could lead to an outcome that the testator did not want.

Below, we have listed some of the most common problems to look out for, which you can address with the help of your Albuquerque contingent will lawyer

A Court Might Rule That the Contingent Will Must Take the Place of the Actual Intended Will, Even if the Special Condition Is Not Met

Contingent wills have to be extremely explicit about when they should or should not activate. If there is any ambiguity, a court could deviate towards approving the most recently made will.

If the most recent will is the contingent will, then it could take the place of the “regular” will that should have been used instead.

This conundrum has posed challenges for over a century, as evidenced in a 1920 issue of the Virginia Law Review, which cautions that “unless the intention to make the will contingent upon a certain event is clearly and unequivocally shown, the courts will construe the will as unconditional and permanent.”

To avoid this situation, the testator should make it crystal clear as to what condition would cause the contingent will to activate. As an extra precaution, they can include language stating what would not cause the contingent will to activate and which will to use instead.

For example: “If I should not outlive my adult son Robert, and should he remain alive at the time of my death, this contingent will should be considered null and void. Instead, I wish for my executor to follow the will created on…”

This level of explicitness can give estate representatives and courts the clarity they need, while at the same time discouraging contests based on language that could have multiple interpretations.

The Contingent Will Doesn’t Completely Dispose of the Estate

A will is expected to describe how a personal representative should handle every single asset the testator leaves behind. If something is left out, the estate representative and the courts will look to another document that mentions it, including an older version of a will or an agreement signed by the testator.

If no such document is available, then that part of the estate might be deemed intestate, meaning that it would transfer automatically to next-of-kin.

To avoid a situation where an estate asset is left out of a contingent will, the contingent will can contain a residuary clause. This clause instructs how to distribute any property not specifically mentioned by the contingent will — a “catch-all,” of sorts, for anything the will might have glossed over.

Alternatively, the contingent will can direct the estate representative to refer to another document (such as another will) for guidance on distributing property not mentioned specifically in the contingent will.

It Isn’t Clear if the Contingency Condition Was Met

When describing the scenario that would activate the contingency will, the testator should carefully explain exactly what the condition looks like. If possible, they should provide examples of how an estate representative might rule on edge cases.

For instance, say a contingent will is supposed to activate if a business was not sold prior to the testator’s death. The testator can describe whether the will would still activate if a sale was pending or there were potential offers on the table for the business.

With this level of clarity, an executor can know that they shouldn’t activate the contingent will just because a pending sale was not finalized yet.

Someone Challenges the Contingent Will’s Validity 

A will contest can be filed by any party with an interest in the estate. Interested parties can include named beneficiaries, creditors, people who were named as beneficiaries in an earlier version of the will, presumptive beneficiaries (such as disinherited children), and others who can demonstrate that direct harm would come if the will were to be used in probate.

There are several ways someone might submit a will contest. They could allege that the testator:

• Made a mistake
• Meant for a different will to be used
• Did not execute the contingent will properly
• Was not in a state of mind where they understood what they were doing (i.e., they lacked testatory capacity)
• Was subject to duress, fraud, or undue influence

Contingent wills can sometimes make for easy targets in a will contest. That’s because the court may see the contingent will as a “preferred” way to handle an estate, but not the only legal means available.

If a contest against the contingent will succeeds, then the disposition of the estate is handled by the “official” will or the next-most recent will from the contingent one.

To prepare for possible contests, testators should perform due diligence to demonstrate their capacity and document a lack of undue influence. Those with an interest in the estate should avoid providing advice, guidance, or direct assistance with the creation of a contingent will, especially if the testator is in an ailing and vulnerable state.

Additionally, the testator should clearly state their intentions as to when the contingent will should activate and when another version of their will should not be used.

The Contingent Will Contradicts Other Estate-Planning Instruments

If a contingent will activates as intended, it can cause issues if it describes how to handle the estate in ways that contradict other documents. For example, a “regular” will might leave a house to a first-born daughter, and a contingent will leaves the house to a second-born daughter if the first-born daughter already owns a home at the time of the testator’s death.

However, the testator’s home was jointly owned by the testator and their spouse, who is still living, and the deed gives rights of survivorship.

In any situation, the joint tenancy deed probably takes legal precedence over a will. Family members may then be upset or confused as to why the home wasn’t passed along as instructed by the will.

Because of the risk of this situation, individuals should always review every part of their estate plan on a regular basis, especially after making major changes to things like property deeds. The goal is to eliminate contradictions and ensure the estate is completely disposed of.

The testator should also ensure that they are always providing clear and up-to-date instructions for the personal representative to follow, with minimal interpretation needed.

Alternatives to Creating an Albuquerque Contingent Will

As you can see, a contingent will can lead to many types of issues and challenges. While these challenges are not unique to a contingent will, per se, they can create an added level of confusion when there are multiple documents seemingly competing to be probated.

To reduce confusion and simplify the management of their estate, a testator can use any of the following in lieu of a contingent will.

Contingency Clause in a Will

A contingency clause usually describes the disposition of a specific asset or category of assets in case a specific situation arises. It plays an identical role to a contingent will without risking the invalidation of an entire will instrument.

For example, the contingency clause may leave a vehicle collection to an auto museum if no one in the family wants the responsibility of managing it.

In a worst-case scenario, a contingency clause may still cause confusion or a contested claim, but the legal questions will then center mainly on what happens to the specific asset(s), rather than considering whether the entire will is valid. This arrangement reduces the risk that the testator will have an entire will “thrown out” and their estate handled in ways they did not intend.

Contingent Beneficiary Clause

A contingent beneficiary refers to a beneficiary who only inherits property if another beneficiary is unable (or unwilling) to receive it. This type of clause usually requires the primary named beneficiary to be dead, missing, incapacitated, or otherwise unable to be contacted, or they could decline the inheritance.

If any of those conditions are met, the contingent beneficiary inherits instead.

Contingent Trust

A contingent trust forms only when certain conditions are met. Unlike a contingent will, the contingent trust does not call other copies of a will into question.

It also has the power to hold onto property for an extended period of time, whereas a will distributes property as soon as probate concludes. With a contingent trust, someone can still leave property to a minor heir, for example, while assigning a trustee to hold onto the property until the beneficiary turns 18 (or another age chosen by the trust creator).

Contingency Clause in a Trust

Placing assets in a living trust or testamentary trust can make it much more difficult for someone to contest their disposition. Like a will, the trust can describe what beneficiaries receive what assets.

The trust creator can also draft a contingency clause, which would provide guidance telling a trustee how to handle certain distributions if an unusual condition arises. 

Unlike a will’s executor, the trustee can be given broader discretion as to how to interpret the clause and who the property ultimately goes to. This arrangement reduces the risk that estate arrangements would change dramatically just because it was unclear whether a particular condition was met.

Other Transfers

In addition to trusts, individuals can use many different arrangements to distribute their property other than a will. These transfers can include contingent (called secondary) beneficiaries who can automatically receive property if the primary beneficiary is unable to. 

Examples of transfers that can happen outside a will include: payable-on-death accounts, transfer-on-death accounts, joint tenancy with rights of survivorship deeds, and other accounts/policies/etc. that allow for a listed beneficiary.

Make the Best Choices for Your Legacy With an Albuquerque Contingent Will Law Firm

Planning for the future can always be challenging, especially when certain outcomes could upend our best-laid plans. If you are concerned about the future of your estate and how it would fare under certain conditions, reach out to an Albuquerque contingent will law firm to go over all of your options for making the necessary preparations.

Speak to an experienced attorney at New Mexico Financial & Estate Planning Attorneys when you call us at 505-503-1637 or contact us online to schedule a confidential case review today.