Is there a chance that any of your beneficiaries could be so disgruntled about what you've left them in your last will and testament or trust that they would bring a legal challenge against it?
If so, you may consider adding a “no-contest clause" to your will, which provides that anyone who disputes the validity of the document in court will end up inheriting nothing at all.
What exactly happens in the case of a contested will or trust, and can a no-contest clause really help you avoid that whole mess? Read on.
The process of contesting a will or living trust
A last will and testament communicates your wishes regarding the distribution of your property after your death. A living trust holds your assets for your benefit during your lifetime and for transferring to your chosen beneficiaries at your death by the person you have designated as your “successor trustee."
So what happens if someone wants to contest a will or trust?
Contesting a will requires that a beneficiary file a formal legal challenge against the validity of the will. A person must have standing to bring a will contest, which means he or she must have a financial interest in the estate, usually as a named beneficiary or someone who is entitled to inherit based on existing law.
Grounds for a will contest may focus on the testator's capacity—that he or she was not of sound mind when the document was executed—or external forces such as undue influence, fraud, or duress, all of which allege that someone had forced the hand, so to speak, of the testator in drawing up the will.
Additionally, a will contest may seek to present a newer version of the document, alleging that it is the valid one.
Challenges to the validity of a trust are similar in nature and generally call into question whether the trust accurately reflects the trust creator's wishes. As with a will, duress, fraud, undue influence, and even ambiguity in the trust's terms may be alleged.
The process for disputing a will or trust can mean additional costs for the estate—and less inheritance for beneficiaries. And since we're talking about court processes, it's no surprise that all of this can take quite a bit of time—years even—to sort out.
None of these side effects of a will or trust contest are desirable for your beneficiaries, so it's likely something you'll want to try to avoid.
Enter the no-contest clause.
What does a no-contest clause in a will do?
A no-contest will clause uses the threat of no inheritance at all—even what is bequeathed to the person within the document—to dissuade beneficiaries from challenging the validity of a will.
A sample no-contest clause in a will looks something like this:
"Notwithstanding anything herein to the contrary, if any beneficiary contests the terms of this Will, including, without limitation, filing a contest of admission of this Will to probate under [applicable section of the state Probate Code], that beneficiary shall not be entitled to any property under the terms of this Will, and for all purposes of this Will, that beneficiary shall then be deemed to have predeceased me."
A no-contest clause in a trust would contain similar language, but remember that your state may have specific requirements, so it's always best to consult a professional when incorporating legal language into your will or trust.
Pros and cons of no-contest will clauses
The main “pro" to including a no-contest clause is that it often does effectively deter beneficiaries from bringing a legal challenge to the will. On the flip side, however, if there actually were any errors in the will or trust, the existence of the no-contest clause leaves no recourse for that beneficiary.
Something else to keep in mind is that a no-contest clause doesn't automatically mean there will be no issues or disagreements over the estate. One big caveat, for example, is that some states actually allow a beneficiary to bring a will contest—even in the presence of a no-contest clause—so long as she has probable cause to do so. And some states, such as Florida, will not enforce no-contest clauses at all.
Another important limitation of no-contest clauses is that they don't apply to a person who is not a named beneficiary in the will. That is, even if there is a no-contest clause, a person omitted from the will who brings a contest will have no fear of repercussions of non-inheritance. He or she simply isn't covered by the clause.
Ask an estate planning attorney
Most people probably don't have to worry about whether someone is likely to contest their will or trust once they're gone, but if you have reason to believe you do and are thinking about including a no-contest clause in your will, it is more important than ever to make sure your wishes are absolutely clear in your estate documents. As you can see, there can be many strategic decisions to make along the way if you want to avoid will or trust contests later.
Do yourself, your estate, and your loved ones a favor and consult an estate planning attorney for advice. No-contest clauses can be extremely effective, but you need to be sure they are drawn up correctly in order for them to do their jobs well.
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