How Do No Contest Clauses Work?

How Do No Contest Clauses Work? – Contesting a will is not just the stuff of TV melodramas — it happens in real life. After you’re gone, if a family member believes you didn’t have the requisite mental capacity to execute your will, that someone exerted undue influence over you, that someone committed fraud or that the will wasn’t executed properly, that person may have grounds to make a challenge. Is there anything you can do to prevent that?

A no-contest clause is a provision you can include in your will or revocable living trust that states that if anyone files a lawsuit to challenge who you have provided for in your estate plan, that person will receive nothing. You may consider using it if you have “problem beneficiaries” you’re afraid will just squander their inheritance.

A beneficiary may be upset by the property distribution. A no-contest clause will work only if you’re willing to leave something of value to the potentially disgruntled heir — enough that the challenge isn’t worth the risk of losing the inheritance.

Here are some other ways to help you avoid contests:

• Make sure your will is properly executed. It should be drafted by a professional and signed and witnessed by two independent witnesses.
• Explain your decision. Much of the discussion about contesting a will assumes that it is done in bad faith by an heir who just wants a bigger slice of the pie. But people also file contests because they don’t understand your decision and don’t believe that you would have made it of your own volition. Explaining your decision ahead of time eliminates these good-faith complainers. You can also include an explanation with the will, either in the body of the document or as a separate letter.
• Get the will signing on video. This allows your family members and the court to see that you’re signing the will freely. If you appear to be of sound mind in the tape, you also eliminate another potential charge.
• Avoid the appearance of undue influence. Family members shouldn’t be present when you discuss the will with your attorney or when you sign it.

Be careful about relying on the no-contest clause in Florida or Indiana, where no-contest clauses are unenforceable. In other states, there are exceptions that can render the clause useless. Your attorney can help you plan the best strategy for you. 

Thoughts of staving off any will contest will be easier if you’re consistent and don’t make a show of making modifications to reflect your ever-changing family and financial situations. If you include a no-contest clause in your estate plan, you need to be sure there are no mistakes. If you leave out important property or aren’t clear about property in your possession, your heirs could be completely disinherited if they try to fix any mistakes.

A no-contest clause can be a good tool for discouraging a will contest. Reviewing the plan sends a powerful message to family members that you are consistent and aware of what it contains.

Will contests can drag on for years, keeping all heirs from getting what they’re entitled to. It may be impossible to prevent relatives from fighting over your will entirely, but with this step, you can try to minimize squabbles and ensure your intentions are carried out.

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William Hayes

As an attorney in private practice in Los Angeles County, California William Hayes provides extensive estate and tax planning services to individuals and businesses in Los Angeles, Pasadena, Glendale, Burbank and surrounding communities. Attorney Hayes’ primary focus is to help clients avoid probate, protect their assets, and provide for the security of their loved ones with a well-crafted estate plan. He believes in giving each client the time needed to explain his or her needs and wishes and then dedicates his efforts toward making the client’s desires clear in their final estate plan.

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