When you make your estate plan, you want to assume that the heirs and beneficiaries of your will or trust will accept the terms. After all, those are your final wishes for distribution of your assets, and they should be respected.
However, not all heirs are interested in your wishes, and instead focus on whether they get their fair share or even any share at all. If they are unhappy with the distribution of the estate, then they might contest the terms based on any number of factors, but unfairness is not one of them. So, they have to challenge the validity of the entire estate document, and not how assets are divided.
Most common is a ‘direct contest’ by an heir based on one of the following to claim the will or trust is invalid:
- Lack of due execution (signed/witnessed)
- Lack of capacity
- Menace, duress, fraud or undue influence
- Disqualification of a beneficiary
What is a No-Contest Clause?
In California, it is possible for to put a ‘no-contest’ clause in your will or trust, which would legally prevent a contest under certain conditions. A no-contest clause would be applied if the contesting heir could not have reasonably expected their contest to succeed once all the facts are known. In other words, the contest has to have some factual merit, and is not just a ploy to block or change distribution.
There is another hurdle to meet in California when contesting the validity of a will or trust. The contest will only be heard if the beneficiary bringing the claim would have something to lose in the will or trust. The reason is that a failed contest can result in total loss of the inheritance, so the no-contest clause would only deter an heir with something to lose. Otherwise, an heir who was disinherited could contest the will or trust with no risk.
When should you use a no-contest clause?
Most will and trust should have a no-contest clause to serve as a deterrent. It is especially helpful if the estate is divided unequally among heirs who might otherwise expect an equal share, such as children of the deceased. The same would be true if a spouse would be receiving less than their expected share.
If you have questions about whether you need a no-contest clause in your estate plan, please call the estate planning attorneys at Shoup Legal, A Professional Law Corporation at 951-445-4114 or visit their website at www.ShoupLegal.com.