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Do you need to add a no-contest clause to your last will?

On Behalf of | May 29, 2018 | Uncategorized

You’ve spent a lifetime building up the assets and possessions you currently have. It’s only natural to want to see them allocated in a manner than reflects your wishes and preferences. For many people, their last will or estate plan is also a way of leaving a lasting legacy. That could mean passing on the family home to someone whom you trust to live there, not to just sell it for money. It could also mean allocating more assets to one heir than others or leaving something for charity.

Unfortunately, it’s possible that your family will not agree with your decisions on how to disburse your estate. That can lead to a lot of potential conflict among your family members and heirs after your death. If you have reason to suspect that someone in your family could attempt to contest your last will or challenge your estate, you may want to consider including a no-contest clause in your last will.

A no-contest clause can prevent unnecessary probate expenses

People who plan their estates typically do so to control who receives what and to reduce or eliminate the expenses and delays associated with probate court. However, all it takes is one unhappy heir to challenge your last will and drag your estate into a messy challenge in probate court. Someone who expected more than you’re giving or who wanted certain assets may have plenty of motive to challenge an estate.

A no-contest clause allows you to protect your wishes and your estate from the actions of one heir or family member. Typically, these clauses include language that creates a penalty for anyone who challenges or contests the will, trust or estate. In some cases, it could mean forfeiting a certain portion of an inheritance. That penalty could include the costs associated with probate court. A no-contest clause could also disinherit the person who brings the challenge or contest.

California courts do uphold no-contest clauses

In general, California law recognizes the right of testators to create no-contest clauses in their last wills or estate plans. However, the state law is very clear about the ability of heirs or family members to bring a contest if probable cause exists. In a situation where family members have reason to believe that undue influence, duress or mental incapacity played a role in the creation of a last will or in changes to it, that probable cause could prevent the courts from enforcing a no-contest clause.

Add one of these clauses can protect your estate and legacy from needless and selfish contests from heirs, while still allowing for reasonable challenges. You may also want to advise your family members and heirs of the addition of the no-contest clause. Doing so could also reduce the risk of unnecessary challenges.


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