Apr 4, 2009

Worried about someone contesting your estate? Look beyond the No-Contest Clause

Occasionally I am consulted by someone who is greatly concerned that his estate plan will be challenged after he or she has passed on. Most commonly, the client wants to leave very little to a long-estranged child, and he's worried the child will sue the estate. Contests can drag on for years, draining money from your estate and preventing your beneficiaries from receiving their inheritance timely. They are ugly affairs.

A "no-contest" clause  -- a provision that penalizes a beneficiary who challenges his inheritance -- may work in some states. But in Florida, the no-contest clause is just so much legal window dressing. It may make you feel good to put it in. And it's very presence may have some deterrent value to a potential challenger. But it is NOT legally enforceable. Florida Probate Code  section 732.517 states that “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Similarly, Florida Trust Code 736.1108 states that "a provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable."

You can't bullet-proof your estate plan to guarantee someone won't challenge your estate. The good news is that you can take the wind out of the legal sails of any would-be challenger. Read more about the steps you can take to protect your estate against a challenge and reduce the likelihood a contest will not succeed.

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