Real Estate Law Misconceptions

No matter how fairly you divide things in a will, expect an heir to be dissatisfied with what you leave them. One way to stop an heir from contesting a will is a no contest clause, which means challenging your will could cause them to forfeit what you left them if they don't win in court. A no contest clause was once called "in terrorem," since the purpose of the clause intended to place fear in any person who challenged the will. Here are some tips to add a no contest clause in a will.

Check State Laws

Most states recognize no contest clauses in wills, but place restrictions on them. No contest clauses are not enforceable unless they are based on probable cause, or good reason to contest the will. Just being dissatisfied with the terms of your will usually isn't enough to challenge it.

Florida and Indiana do not enforce no contest clauses regardless of the circumstance. Even if the heir loses the case, they still get their inheritance. In some cases the heir can challenge parts of your will, such as an executor, without being in violation of the clause.

Determine If the Clause Will Deter a Challenge

A no contest clause isn't effective unless the heir has a sizable inheritance that won't be worth challenging. For example, an heir won't have much to lose with a possession worth $2,000, but leaving them $100,000 worth of assets may make them think twice. However, if you have to disinherit an heir, they could still contest the will, and since they inherit nothing, they lose nothing, and they would still get the inheritance..  

Draft the Will and Clause

Compose your will, and add a paragraph with the no contest clause stating you write this "with intention and full knowledge." It is also a good idea to make a video tape of yourself saying that you make this will with sound mind. Include a line that says anyone who challenges your will stands to lose their inheritance, and the clause doesn't revoke the entire will. Sign and date your will, and include witness signatures if required.

A no contest clause will save your heirs legal expenses as well as public embarrassment, and they may thank you for it later. If you have disinherited an heir, plan to disinherit an heir, or you want to add the clause to an existing will, contact an estate planning attorney like Brandt & Beeson PC.