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. The Grand Forks estate planning attorneys at German Law explain how a no-contest clause in your Will can help prevent a Will contest.
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.
The Probate Process and Contesting Your Will
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.
How Can a No-Contest Clause Help?
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 which 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.
Enforcement of No Contest Clauses
No contest clauses are governed by state law. Not all states recognize no-contest clauses and those that do impose varying restrictions on them. In North Dakota, North Dakota Century Code 30.1-20-05 governs the enforceability of a no-contest clause stating as follows:
“A provision in a will purporting to penalize an interested person for contesting the will or
instituting other proceedings relating to the estate is unenforceable if probable cause exists for
Contact a Grand Forks Estate Planning Attorney
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about including a no-contest clause in your Will, contact a Grand Forks estate planning attorney at German Law by calling 701-738-0060 to schedule an appointment.
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