As mentioned in the last two parts of this weekly series, will contests are an annoying and potentially costly consequence of improper execution or the creation of a pretermitted heir. There are a few ways to help limit the possibility of a will contest, the simplest and most straight-forward being the no-contest clause.
No-contest clauses, also know as in terrorem clauses, can be used to dissuade will contests by establishing penalties for those who would consider making such contests. These penalties can include the complete revocation of any devise made to a beneficiary if they decide to institute a will contest.
Of course, for a no-contest clause to work, you must “bait the trap,” so to speak. For example, if you completely disinherit a child from your will, it may make sense for him to challenge it. If he succeeds in having the will thrown out he may inherit a share of your estate through the laws of intestacy. So if you completely disinherit him, he has nothing to lose by challenging the will. But if you leave him a small amount in your will – you decide based on the circumstances what constitutes small – he actually does have something to lose by challenging the will. He may decide to simply take the amount you have left him and forego challenging the will.
For more information regarding will contests refer to Part VII of this series, entitled “Will Contests.”
Tags: asset protection, Estate Planning, probate, Wills, Wills series