Over the years, you may have witnessed your family fight over various situations. In particular, you may have seen your loved ones bicker over a deceased loved one’s estate and may even have seen litigation result. Now that you are ready to create your own estate plan, you may worry about your estate winding up at the center of a family fight.
You are already taking a beneficial step to lessen that likelihood by creating an estate plan in the first place. Leaving no instruction often opens estates up for conflict, so getting your wishes organized and down on paper could prove useful in avoiding contention. However, you may also want to consider going one step further with your plans.
No contest clause
One option you may want to consider when creating your will is including a no contest clause. The information included in this clause typically states that if an heir or beneficiary chooses to contest the will, then he or she effectively forfeits any inheritance that may have been bequeathed to that person. Most states, including New York, consider this type of clause enforceable, but some exceptions may exist that could result in the court voiding your clause.
Unenforced clauses
Individuals use no contest clauses because they do not want their surviving families fighting over the estate for no good reason, which the court understands. However, the court also recognizes that good reasons for challenging a will may also exist, which is why the court may choose not to enforce a no contest clause. If a loved one believes that someone subjected you to undue influence in preparing and signing the will or that the will submitted to the court is fraudulent, the court may allow a contest to move forward.
Details of your clause
While you may want to use the clause to prevent the delay of probate proceedings for your estate, it could benefit you to remember that the details in your clause could also impact its effectiveness. For instance, if you put the clause in place but your heirs do not have much inheritance to lose or you completely disinherit someone, that person may not see the clause as a deterrent because he or she has nothing to lose already.
You may also want to make sure that you detail how to distribute any forfeited assets should someone choose to move forward with a contest. If you do not include this information, the court could potentially void your clause.
You may also want to explore other legal options for working toward less conflict over your estate after your passing.