Are you currently preparing your estate plan? If so, you may have had a friend or family member suggest adding a no-contest clause to your will. But what is a no-contest clause in a will? The Semanchik Law Group team is here to provide you with all the info you need to know.
Defining the No-Contest Clause
A no-contest clause (or in terrorem clause) is a section of a will that aims to prevent beneficiaries from challenging its terms. These clauses generally say that if a beneficiary contests the will and loses, they won’t inherit anything.
Are No-Contest Clauses Enforceable in the State of California?
The enforceability of no-contest clauses varies significantly from state to state. In some jurisdictions, like Florida and Indiana, these clauses are almost entirely unenforceable.
California law allows for no-contest clauses to be enforced against the following types of challenges:
- A direct contest that is brought without probable cause
- A challenge to the transfer of a property on the grounds that it did not belong to the transferor at the time of the transfer (if the no-contest clause expressly provides for this application), and
- The filing of a creditor’s claim or the prosecution of an action based on it (if the no-contest clause expressly provides for this application)
The state of California defines a “direct contest” to a will as a challenge that allergist the document is not valid based on one or more of the following grounds:
- Lack of capacity
- Lack of due execution
- Fraud, duress, menace, or other undue influence
- Revocation of the will
- Disqualification of a beneficiary
For the purposes of determining the enforceability of no-contest clauses in wills, California law says that “probable cause” exists if, at the time of filing a challenge, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood that their request will be granted after an opportunity for additional investigation.
Should I Add a No-Contest Clause to My Will?
When deciding whether or not you should add a no-contest clause to your will, there are a wide variety of factors to consider, such as:
- The size and complexity of your estate
- The number of beneficiaries, and
- Your relationship with your beneficiaries
The best way to know if a no-contest clause is right for you is to speak with a knowledgeable California estate planning attorney. They will be able to review your situation and provide you with the advice you need to make your decision.
A San Diego Family Lawyer You Can Count On
Your search for a California estate planning attorney who can help you decide if a no-contest clause is right for you doesn’t have to be difficult. In fact, it’s already over. The team here at the Semanchik Law Group has been helping San Diego residents prepare their estate plans for many years – and we would be happy to do the same for you.
To set up a consultation with a member of our team, just give us a call at (619) 535-1811 or contact us online.