How Can I Stop Fights Over What I Leave? Text Size:

You can't stop your heirs from challenging your will. However, you can discourage potential contest by writing it in such a way that gives clear direction and intent. You can also put different clauses in the will to lessen the possibility for fights over disputed property in the future.

No Contest Clause

An effective way to discourage a will contest is to include a no-contest provision (also called an anti-contest provision, a forfeiture clause, or an in terrorem clause) in the will. Wording of this manner says that anyone who contests the will automatically forfeits their inheritance under the will.

A number of states have policies that no contest clause won't be enforced against a beneficiary who has a good reason for contesting the will. For example, the deceased person lacked the required mental capacity to make a valid will or the current will was made by fraud, duress or other action that would normally void a will.

Other states, however, enforce no contest clauses regardless of whether the beneficiary had a good reason to contest the will. Some states will not enforce such clauses under any circumstances. You should check your state laws concerning no-contest clause. however, just the presence of such a clause puts beneficiaries on notice of your intentions.

If you do decide to include a no contest clause in your will, you must be sure to provide what will happen to the forfeited bequest if the beneficiary does contest. This is called a ''gift-over,'' and without it, the clause may be invalid.

Agreement with the Beneficiary

It's possible to enter into an enforceable agreement with a beneficiary not to contest your will. If value or consideration is given for the promise not to contest the will, then the no contest clause will be enforceable. States vary regarding the remedies used if there is a breach (i.e. if someone breaks their promise) in the agreement. It is a good idea to check your state laws and how the state would enforce the agreement if there is a breach.

The use of this type of agreement generally is used with a spouse. However, the agreement can also be used with a beneficiary other than a spouse, although it is quite rare. Also, premarital agreements, postmarital agreements or separation agreements usually contain a provision that neither spouse will contest each other's will.

Use of a Living Trust

Only property that's subject to probate court proceedings is subject to contests, and property passing outside this probate estate isn't affected by a will contest. Property interests that pass outside of probate include trusts, insurance policies, or jointly held property.

Trusts are set up during the settlor's (the person creating the trust) lifetime. If you create a living trust, you can keep control over all the trust assets during your lifetime and also provide that, on your death, whatever remains will pass directly to the named individuals in the trust.

Although a trust is not impossible to challenge, it is far more difficult to challenge than a will since a trust operates with the full knowledge and, in most cases, the full control of the owner. Nevertheless, an heir can challenge the trust if it was improperly executed, the settlor was unduly influenced, lacked mental capacity, or the settlor was fraudulently induced to set up the trust.

You can double your protection against a contest by including a no contest provision in your trust as well as your will.

Questions for Your Attorney

• Does my state enforce no contest clauses?
• Can a court change my will?
• Can a person who is not named in my will challenge my will?

Related Resources on Lawyers.com^sm