Should you add a no-contest clause to your latest will? 

On Behalf of | Jun 11, 2021 | Estate Planning |

Estate planning in California often involves multiple steps. You may need to create and fund a trust, record your medical preferences in a living will and even update an existing estate plan when your family relationships or personal holdings change. 

Making sure that the documents you draft adequately reflect your family situation and your personal property is key to managing your legacy. One of the fastest ways for other people to damage your planned legacy would involve a family member or heir bringing a challenge against your estate. 

You can potentially add a no-contest clause that disinherits someone if they can test your last wishes. Is adding such a clause a good move?

No-contest clauses present unhappy heirs with a difficult choice

A no-contest clause doesn’t totally stop challenges, but it does discourage them. If they unsuccessfully challenge the will, they lose the inheritance they would have otherwise received according to the will’s terms. If that’s a significant amount of assets, they may think twice about taking action.

The California courts will enforce a no-contest clause

Family members in California do have the right to bring a challenge against an estate plan or last will if they have probable cause to suspect issues like fraud, undue influence or lack of testamentary capacity on the part of the testator. Sadly, it is all too common for some people to try to fabricate grounds to challenge an estate just because they want a larger inheritance. 

If you add a no-contest clause and someone challenges your will anyway, the probate courts will very likely strip that individual of their inheritance. The only time that the court may choose not to enforce no-contest clauses is when someone can demonstrate probable cause for their challenge

If you expect one of your family members to take issue with your estate plan or if you simply want to prevent fighting among your loved ones, including a no-contest clause and telling your family about it can be the quickest way to keep them from undermining your wishes.