Morris & Morris, A Law Corporation - Estate Planning

Using a no-contest clause to protect your California estate plan

The more assets you have acquired over the course of your life, the stronger your feelings may be about what happens to those assets when you die. If you are like most people, you have probably put significant thought into who should receive which of your assets after your death.

Those decisions aren't always easy. In some cases, you feel compelled to leave one member of your family out of your estate plan or last will. This process, called disinheriting someone, effectively removes someone from your last will and prevents them from inheriting your assets.

Unfortunately, not everyone responds well to disappointment about last wills. The person you try to cut out of your will or another family member could try to challenge your last will in court. Adding a no-contest clause helps ensure they cannot do so with impunity.

California has complex laws about no contest clauses

As you might imagine, a no-contest clause specifically prohibits an heir or beneficiary from contesting the contents of a last will or estate plan. People tend to include these when they know they have someone in their family who will drag their estate through probate. Whether you have two family members who always fight or one person struggling with addiction, it is a common practice to limit what you leave to certain individuals.

Unfortunately, they could then try to challenge your last will and secure a larger portion of your estate's assets. By adding a no-contest clause, you create legal repercussions for anyone who challenges your will. They could lose out on their entire inheritance if they choose to challenge your wishes.

It's important to know that unlike some states, California has many nuances regarding the enforcement of no-contest clauses. Some people, such as the trustee or another person with fiduciary duty to the estate, can legally bring a challenge for certain reasons. However, when it comes to beneficiaries bringing questionable challenges because they are unhappy with the terms, the California probate courts are likely to uphold a no-contest clause.

Creating a trust and a more structured estate plan helps

The more detailed and structured your estate plan is, the harder it is for someone to challenge it for being inaccurate, outdated or unfair. In fact, many people find that creating a trust is one of the most straightforward ways to avoid contentious behavior by family members after their death.

A trust gives you more control over the disbursement of assets and also give the courts more oversight over the administration of your estate. Much like a last will, a trust can include a no-contest clause that protects your wishes from unnecessary attacks by your family members.

If you find yourself worrying about the potential for someone to challenge your estate plan, you may want to talk with an estate planning attorney about whether a no-contest clause could help.

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