You undoubtedly think of a Last Will and Testament as the Testator’s opportunity to decide precisely what happens to his or her estate assets after death. In most instances, that is exactly what happens –the decedent’s Will is used to probate the estate and, therefore, determine what happens to the estate assets. Sometimes, however, a challenge to the validity of the Will is filed. If the contestant is successful with that challenge, the Will is declared invalid and the estate is probated using the relevant state intestate succession laws. If the contestant is not successful, the probate of the estate continues using the Will submitted to probate. Either way, however, litigating a Will contest is costly, both in terms of time and money. One thing a Testator can do to try and discourage challenges to a Will is to include a “no contest” clause in the Will. To help you understand, a Grand Forks probate lawyer explains how a no contest clause works.
The Effect of a Will Contest on Probate
To understand why people often include a no contest clause, it helps to better understand the effect a Will contest has on the probate of an estate. Following the death of the decedent, the Executor of the estate submits an original copy of the decedent’s Last Will and Testament to the appropriate court along with a petition to open probate. The exact process and procedures will vary by state, however, at some point shortly thereafter the court will make a determination that the Will submitted for probate is an authentic Will signed by the Testator. In the interim, an “interested party” may decide to challenge the authenticity of the Will by filing what is referred to as a Will contest. Contrary to popular belief, a contestant cannot contest a Will simply because the contestant is not happy with his/her inheritance (or lack thereof). Instead, a Will contest must allege that the Will submitted for probate is invalid for one of several legal reasons. The issue of the Will’s validity must then be litigated. The litigation often takes months to resolve. Because the Executor is required to defend the Will, it also costs the estate a considerable amount of money. If the Will contest is successful, the Will is declared invalid and the state intestate succession laws are used to distribute the estate assets. If the Will contest is unsuccessful, the probate process resumes where it left off using the terms of the Will to distribute estate assets.
A No Contest Clause Explained
A no contest clause is a clause a Testator adds to a Last Will and Testament that effectively disinherits anyone who challenges the Will. For a no contest clause to work as intended, the contestant must receive something in the Will to begin with or there is no incentive to forego a challenge. For example, imagine that you have two children and that your estate is worth $1 million. You are concerned that your son might challenge your Will if you leave him nothing so, instead, you leave him $100,000 and include a no contest clause. By doing so, you leave your son two options. The first is to take the $100,000 and no contest your Will. The second is for him to risk losing the $100,000 by filing a Will contest. If he does contest the Will and is successful, he would inherit half the estate under the state’s intestate succession laws; however, if he is unsuccessful he forfeits his original inheritance of $100,000 because he contested the Will.
Talk to a Probate Lawyer
The manner in which no contest clauses are viewed and treated can vary widely among the various states. Some states recognize them as they are written, some will ignore a no contest clause if a challenge is brought in good faith and still other states refuse to even recognize a no contest clause. If you are considering the inclusion of a no contest clause in your Last Will and Testament, or you want to know how to handle one in the Will of a recently deceased loved one, consult with an experienced probate attorney.
If you have additional question or concerns regarding a no contest clause, contact the experienced North Dakota and Minnesota probate attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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