Creating a Last Will and Testament is your opportunity to decide precisely what happens to your estate assets after death. In most instances, that is exactly what happens. 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 you can do to try and discourage challenges to a Will is to include a “no-contest” clause in your Will. The Grand Forks probate lawyers at German Law explain how a no-contest clause in a Will 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 decide that the Will submitted for probate is an authentic Will signed by the Testator and the probate process moves forward.
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. The validity of the Will 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 or there is no incentive to forego a challenge. For example, imagine that you have two children and that your estate is worth $5 million. You are concerned that your son might challenge your Will if you leave him nothing, so you leave him $500,000 and include a no-contest clause in your Will. That $500,000 is considerably less than the half he would inherit if the estate was probated using the state’s intestate succession laws; however, it is more than nothing. Your son then has two options. The first is to take the $500,000 and not contest your Will. The second is for him to risk losing the $500,000 by filing a Will contest. If he does contest the Will and is successful, he would inherit half the estate; however, if he is unsuccessful, he forfeits his $500,000 inheritance because he contested the Will.
Individual states treat a no-contest clause differently. 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. In North Dakota, North Dakota Century Code Section 30.1-20-05 governs no-contest clauses stating:
“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 instituting proceedings.”
Contact Grand Forks Probate Lawyers
Please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding a no-contest clause, contact the experienced Grand Forks probate lawyers at German Law by calling 701-738-0060 to schedule an appointment.
John grew up on a small livestock farm in west central Minnesota. He now lives in Grand Forks with his wife Maggie and their two daughters. In his free time John enjoys reading, taking his family to North Dakota and Minnesota state parks and rooting for all UND and Minnesota professional sports.
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