When you create a Last Will and Testament, you do so with the knowledge that the terms of that Will are legally enforceable. In fact, that is one of the primary benefits of using a Will to distribute your estate. Of course, one of the hallmarks of the American judicial system is the idea that anyone can access the judicial system to resolve disputes or clarify legal issues. That means that someone could challenge the validity of the Will you create after you are gone. If that happens, the ensuing Will contest can take months, even years, to litigate. The Los Angeles attorneys at Schomer Estate & Wealth Advisors explain how including a no contest clause in your Will may help prevent a California Will contest.
Contesting a California Will
A Last Will and Testament is typically the first estate planning document created and often continues to provide the foundation for an expanded estate plan. Although people often include additional distribution methods (such as a trust agreement), a Last Will and Testament can distribute your entire estate after you pass away. Whether your Will purports to distribute your entire estate or just a portion of the estate, you are counting on the terms of the Will to be honored after you are gone. In fact, once a judge has authenticated your Will, the law requires that the terms of the document be followed during the probate of your estate. During the authentication process, however, someone may challenge the validity of the Will submitted for probate in what we commonly refer to as a “Will contest.”
Although it is typically a disgruntled heir or beneficiary who initiates a Will contest, the contestant must allege legal grounds on which the Will could be invalidated. In California, those grounds include lack of testamentary capacity, undue influence, fraud, improper execution, or the existence of a more recent Will. Once a Will contest is initiated, the issue must be fully litigated and resolved before probate can proceed. If the contestant prevails, the Will submitted for probate is declared invalid and the court will look for another valid Will to use to probate the estate. If no valid Will exists, the California intestate succession laws will be used to determine what happens to the estate assets. If the contestant is unsuccessful, the Will is authenticated and used to probate the estate. Even if a Will contest fails, the need to litigate the issue can drain the estate of money and cause beneficiaries to have to wait months, even years, to receive their intended inheritances. Understandably, it is wise to try and prevent a Will contest when possible.
What Is a No Contest Clause?
Including a no contest clause in your Last Will and Testament is one way to discourage people from challenging the Will because it effectively penalizes them if the challenge is unsuccessful. A no contest clause works by offering a potential contestant a guaranteed inheritance that they stand to lose if they unsuccessfully challenge your Will.
To help you understand how a no contest clause works, imagine that you have an estate valued at $10 million and your only living relatives are your sister and brother who would inherit your estate equally under the California intestate succession laws. You do not want to distribute your estate equally though. Instead, you want your sister to receive all your estate assets and you want your brother to receive nothing from your estate. Given the amount of money at stake, however, you are all but certain your brother will contest your Will and if he succeeds, he will receive half of your estate. To discourage him from contesting your Will, you gift him $1 million in your Will and include a no contest clause. Your brother then has the option to not contest your Will and accept the $1 million inheritance or forfeit the $1 million gift and gamble on winning a Will contest.
California Law: No Contest Clause
Whether a no contest clause can be enforced in a Will (or trust) is determined by state law. California law will only enforce a no contest clause if a Will contest is initiated without probable cause. In layman’s terms, this means that a court will not enforce the terms of a no contest clause in a California Last Will and Testament unless the court believes that the Will contest is frivolous and without legal merit.
Do You Have Additional Questions about a California No Contest Clause?
For more information, please join us for an upcoming FREE seminar. If you have additional questions about a California no contest clause, contact the experienced Los Angeles estate planning attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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