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Bay Area Estate And Tax Planning Law Firm
Estate Planning
Trust Administration and probate

Can you prevent your heirs from contesting your will?

| Nov 2, 2017 | Blog |

You’ve taken steps to plan for the needs of family and loved ones when you pass on. Creating an estate plan, last will or trust can help ensure that your assets are divided in the way you see fit. Unfortunately, even the estates of people who took great pains to carefully plan their last will can end up in probate court. All it takes is one unhappy family member or heir to contest your last will, trust or estate. When that happens, there’s potential for probate courts to deviate from your wishes.

You didn’t go through all the trouble of creating a thoughtful estate plan or last will to have it tossed aside and ignored. Chances are, you’d like to take steps to prevent your heirs from contesting your will. In order to accomplish exactly that, some testators include “no contest” clauses in their wills. These clauses are language that penalize or even disinherit anyone who brings a challenge against a will.

Are no contest clauses enforceable in California?

One of the most important considerations about a no contest clause is whether the probate courts will honor the validity of these clauses. Every case is different, but California law does provide for their use. There are some qualifiers, however. The most common and important of these qualifiers is probable cause.

An heir or family member who has information that would make a typical, reasonable person agree with the case has a probable cause right to challenge a last will, estate or trust. In cases where a family member or heir brings a direct contest to an estate without probable cause, the courts will typically uphold a no contest clause and the penalties outlined therein.

Steps you can take now to prevent future issues

One of the best ways to prevent future issues with your last will or administration of your estate is to make it clear to everyone what your intentions are. This is particularly important if you have chosen to disinherit someone who would have a reasonable expectation of an inheritance. Informing these individuals now, either in person or in writing, of your intentions, can prevent potential challenges. Similarly, sharing your intentions with every named heir is also a good decision.

Making your position clear on who should receive what assets can help prevent arguments or fighting between your heirs after your passing. That, in turn, could reduce the risk of a potential contestation by someone who felt disappointed or surprised by the contents of your will. You might also include additional documents with your will or estate plan that outline why you have made certain decisions, if you feel the risk for a contest from someone is particularly high.

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