Unfortunately, even a well-drafted and properly executed Will cannot prevent your heirs from contesting the Will. There are, however, some things you can do to decrease the likelihood of litigation during the probate of your estate. Including a no-contest clause in your Will is one of those things. The Coral Gables estate planning attorneys at Stivers Law explain what a no-contest clause is and what impact it may have on a Will.
Your Last Will and Testament
Executing a Will lets you make specific or general gifts of your estate assets to be distributed after your death. Whether you have amassed a substantial fortune or a modest estate, it probably matters a great deal to you what happens to your assets after you are gone. If it didn’t matter, you would not have bothered executing a Will, instead leaving behind an intestate estate and allowing the state to decide what happens to your assets. In fact, the primary incentive for leaving behind a Will is to avoid letting someone else (the State) decide how your assets are distributed. It only makes sense then to do everything you can to ensure that your Will is honored and that any challenges to your Will fail.
Probate and Will Challenges
After your death, your estate will need to go through the legal process known as probate. Although probate serves several purposes, authenticating your Will is one of the most important functions. Shortly after your death, the person named as Executor by you in your Will shall submit an original copy of your Will along with a petition to open probate to the applicable court. During this time, any “interested person” can file a Will contest. An interested person means a beneficiary under your current Will or a previous Will, a legal heir, or possibly a creditor. Although a Will contest must be based on a challenge to the legal validity of your Will, a contestant’s underlying motivation for initiating a Will contest frequently stems from displeasure at the inheritance he/she received (or didn’t receive) under the terms of the Will.
What Is a No Contest Clause?
A no-contest clause, formally referred to as an “In Terrorem Provision,” is a clause you include in your Will that effectively disinherits any beneficiary who tries to contest the Will. Of course, for a no-contest clause to be effective, the beneficiary must stand to lose something that is just valuable enough to make the beneficiary think twice before pursuing a Will contest. For example, imagine you have an estate worth about $5 million. You also have three children, two of whom hold professional degrees, have families, and have taken care of you as you aged. Your third child, however, has been in and out of trouble all his life, suffers from a substance abuse addiction, and has not communicated with you in many years. You want to disinherit him entirely; however, you are convinced he will contest your Will, costing your other children a considerable amount of time and money. Therefore, you gift your “problem child” $500,000” – considerably less than his share of the estate were you to divide it equally — in your Will and you include a no contest clause. If he chooses to contest your Will anyway and wins, and your Will is declared invalid, he would be entitled to 1/3 of the estate (minus the costs) under the state’s intestate succession laws. If he loses, however, he forfeits the $500,000. Unless he is reasonably sure he will win, it makes more sense to take the sure money and call it a day which is the entire purpose of including a no contest clause in your Will.
Is a No Contest Clause Enforceable in Florida?
No contest clauses are governed by state law. That means that not all states recognize no-contest clauses and those that do impose varying restrictions on them. The State of Florida, for example, statutorily prohibits the enforcement of a no-contest clause for an estate probated within the state.
Contact Coral Gables Estate Planning Attorneys
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about a no-contest clause in a Will, contact the experienced Coral Gables estate planning attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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