Navigating No-Contest Provisions in Wills and Trusts
Trust contests and will contests are not only expensive and time-consuming but can disrupt your intended plans for your loved ones’ futures. Here at Your Advocates, we understand the importance of estate planning provisions and how they can protect you.
In most states during the estate planning process, you can rely on a type of provision, called a “no contest” or “in terrorem” clause, to be put in place to prevent anyone who wishes to challenge the validity of your will or trust from becoming a beneficiary of your estate. Unfortunately, for Floridians, no-contest provisions are unenforceable in both wills and trusts.
While this is beneficial as it discourages beneficiaries from challenging a will or trust in court, it also has its downsides. A no-contest clause would not allow a beneficiary to try and invalidate a will/trust if it were fraudulent or created while under undue influence.
Today, we go over additional reasons why no-contest provisions are unenforceable in Florida and what this could mean for your estate plan.
Why Would You Need a No-Contest Provision in a Will/Trust?
The main purpose for having a no-contest provision in a will or trust is to identify who will and who will not inherit your property and assets if you die or become incapacitated. In some states, this provision allows you to prevent someone you disinherit from being a beneficiary and/or contesting your will/trust. Florida is not one of these states.
Florida’s Laws Regarding No-Contest Provisions for Wills/Trusts
Florida is a unique state in the sense that it considers no-contest provisions unenforceable in both wills and trusts. The law states “a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” As a result, you cannot prevent someone you disinherit from being a beneficiary and contesting your will/trust.
Additionally, if a beneficiary sues you to invalidate part or all of your will and loses in court, he/she will still inherit whatever property/assets he/she is entitled to in your will.
Alternative Solutions to No-Contest Clauses
While Florida will not enforce a no-contest in a will/trust, there are other ways to minimize the possibility of litigation. You might be able to prevent risk by adding trust protector provisions, and/or adding a mediation clause to keep a beneficiary from depleting assets from a will or trust in court.
If you are concerned that a family member has a legitimate reason to contest your will or trust in the future, contact a lawyer for guidance.
Contesting a Will in Florida
If you wish to contest a will or trust in Florida, you will need to meet some requirements first. Some of the common grounds for contesting a trust or will in Florida are as follows:
- This occurs when the testator creating the will was manipulated by someone else who convinced him/her to allocate property and assets in a way that he/she would not have without the influencer’s control.
Lack of valid execution:
- To legally execute a will, a testator must meet certain requirements. The testator must be at least 18 years of age and in testamentary capacity (or mentally okay). The will must be written and signed by the testator in the presence of two witnesses (they also must sign the will).
Removal of a beneficiary from the estate:
- If a beneficiary was improperly removed from the will, he/she has grounds to file a dispute in court.
Lack of testamentary capacity:
- This means the testator should not execute a will unless he/she has a good understanding of the details of the will. This includes what property and assets will be distributed, who will inherit them, and the effects of these distributions on the beneficiaries.
- A forged or false will made without the testator’s consent. The testator could also be manipulated into signing a will without a clear understanding of the ramifications.
- As a testator, you can revoke a will at any time before death.
When Can You Contest a Will?
This depends on the circumstances and timeline of your case. In the state of Florida, you can generally contest a will any time before the probate process is complete. Once the will has been submitted to the court, you have 3 months from the time you receive notice of this to contest it.
If the will has not been submitted to the court yet, you can challenge it at any time.
Who Can Challenge a Will?
The parties who can challenge a will include beneficiaries named in the will, beneficiaries removed from the will, or any other interested individual in the estate that has legal grounds to do so.
Consult with One of Our Experienced Attorneys Today
As the state of Florida does not enforce no-contest provisions, you cannot prevent a beneficiary or someone you disinherit from contesting your will or trust. As such, it is important to speak with an estate planning attorney to make the right preparations for your will/trust to safeguard your future and the future of your loved ones. Our experienced lawyers can provide you with advice and possible solutions to deal with any potential problems you may face.
With more than 70+ years of experience, we are confident we can provide you with assistance with your probate and estate planning needs. We are here to help you with anything related to will/trust contests. We promise to protect your rights and help promote your interests every step of the way.
Contact us online or call us at (239) 970-6844 for help establishing or contesting an estate plan.