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 in terms of time and money. The Los Angeles estate planning attorneys at Schomer Law Group, APC explain how a “no-contest” clause can be used to discourage challenges to your Will.
The Effect of a Will Contest on Probate
Understanding why people often include a no-contest clause requires you to 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 California, Probate Code Section 21310-21315 governs the enforcement of a no-contest clause, stating in the pertinent part:
- A no-contest clause shall only be enforced against the following types of contests:
- A direct contest that is brought without probable cause.
- A pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer. A no-contest clause shall only be enforced under this paragraph if the no-contest clause expressly provides for that application.
- The filing of a creditor’s claim or prosecution of an action based on it. A no-contest clause shall only be enforced under this paragraph if the no-contest clause expressly provides for that application.
Contact Los Angeles Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about using a no-contest clause in your Will, contact the experienced Los Angeles estate planning attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.
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