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No-Contest Clauses in Wills and Trusts

 

No-Contest Clauses in Wills and Trusts

Is there a chance that any of your beneficiaries could be so disgruntled about what you’ve left them in your last will and testament or trust that they would bring a legal challenge against it?

If so, you may consider adding a “no-contest clause” to your will, which provides that anyone who disputes the validity of the document in court will end up inheriting nothing at all.

What exactly happens in the case of a contested will or trust, and can a no-contest clause really help you avoid that whole mess? Read on.

The Process of Contesting a Will or Living Trust

A last will and testament communicates your wishes regarding the distribution of your property after your death. A living trust holds your assets for your benefit during your lifetime and for transferring to your chosen beneficiaries at your death by the person you have designated as your “successor trustee.”

So what happens if someone wants to contest a will or trust?

Contesting a will requires that a beneficiary file a formal legal challenge against the validity of the will. A person must have standing to bring a will contest, which means he or she must have a financial interest in the estate, usually as a named beneficiary or someone who is entitled to inherit based on existing law.

Grounds for a will contest may focus on the testator’s capacity—that he or she was not of sound mind when the document was executed—or external forces such as undue influence, fraud, or duress, all of which allege that someone had forced the hand, so to speak, of the testator in drawing up the will.

Additionally, a will contest may seek to present a newer version of the document, alleging that it is the valid one.

Challenges to the validity of a trust are similar in nature and generally call into question whether the trust accurately reflects the trust creator’s wishes. As with a will, duress, fraud, undue influence, and even ambiguity in the trust’s terms may be alleged.

The process for disputing a will or trust can mean additional costs for the estate—and less inheritance for beneficiaries. And since we’re talking about court processes, it’s no surprise that all of this can take quite a bit of time—years even—to sort out.

None of these side effects of a will or trust contest are desirable for your beneficiaries, so it’s likely something you’ll want to try to avoid.

Enter the no-contest clause.

What Does a No-Contest Clause in a Will Do?

A no-contest will clause uses the threat of no inheritance at all—even what is bequeathed to the person within the document—to dissuade beneficiaries from challenging the validity of a will.

A sample no-contest clause in a will looks something like this:

“Notwithstanding anything herein to the contrary, if any beneficiary contests the terms of this Will, including, without limitation, filing a contest of admission of this Will to probate under [applicable section of the state Probate Code], that beneficiary shall not be entitled to any property under the terms of this Will, and for all purposes of this Will, that beneficiary shall then be deemed to have predeceased me.”

A no-contest clause in a trust would contain similar language, but remember that your state may have specific requirements, so it’s always best to consult a professional when incorporating legal language into your will or trust.

Pros and Cons of No-Contest Will Clauses

The main “pro” to including a no-contest clause is that it often does effectively deter beneficiaries from bringing a legal challenge to the will. On the flip side, however, if there actually were any errors in the will or trust, the existence of the no-contest clause leaves no recourse for that beneficiary.

Something else to keep in mind is that a no-contest clause doesn’t automatically mean there will be no issues or disagreements over the estate. One big caveat, for example, is that some states actually allow a beneficiary to bring a will contest—even in the presence of a no-contest clause—so long as she has probable cause to do so. And some states, such as Florida, will not enforce no-contest clauses at all.

Another important limitation of no-contest clauses is that they don’t apply to a person who is not a named beneficiary in the will. That is, even if there is a no-contest clause, a person omitted from the will who brings a contest will have no fear of repercussions of non-inheritance. He or she simply isn’t covered by the clause.

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How to Ensure Your Estate Plan Is Executed Properly

How to Ensure Your Estate Plan Is Executed Properly

by Brette Sember, Esq.

Jun 2016

You’ve completed a will or living trust because planning your estate is important to you, but have you done everything necessary to make sure your documents are legal? Some people start preparing the documents but can’t quite finish.

Your estate plan won’t do what you want it to do if you don’t take all the steps necessary to make sure it will go into effect when you need it to. Don’t leave your heirs hanging!

Making the Tough Decisions

One of hardest parts about creating a will or living trust is deciding how you’re going to distribute your assets. This can be a very emotional decision for some people. Once you’ve worked through this, completing your estate plan can become much easier.

Completing Your Will

You’ve decided who’s in and who’s out. You’ve divvied up your belongings, but you’re not done yet!

To make sure your will is valid, it’s a good idea to complete a self-proving affidavit if your state allows it. This is signed in front of a notary and is attached to the will, basically swearing that you meet your state’s requirements to complete a will.

Signing Your Life Away

Your will is not valid until it is signed in front of two witnesses. You’ll sign the will while the witnesses watch and then ask the witnesses to sign as well. This is a crucial step, because a will that is signed without witnesses is generally not valid.

Storage Matters

It’s important that the completed will is kept in a safe place because it does you no good to have a will that no one can find after your death. Your home safe can be a good place. Your attorney also can keep the will. Make sure your beneficiaries and family know that you have a will and where to locate it.

Completing a Living Trust

Your living trust allows you to use your assets during your life and control their distribution after your death when your successor trustee takes over. After you complete and sign your trust document, there is more work to be done. Your trust is not functional until you actually transfer your assets into it, which is called funding the trust.

This means you will need to change legal ownership of every asset you want to place into the trust, including bank accounts, real estate, investments, and more. These assets will now be owned by “(Your Name), Trustee of the (Your Name) Living Trust.”

An additional document you may need is a Certificate of Trust. This is basically a summary of the trust that you can use to show that the trust exists and how title to trust assets is to be held.

Transferring Assets to Your Trust

Follow these steps to transfer assets to your living trust:

  • Transfer real estate with a quitclaim deed, and also change your homeowner’s insurance to reflect the name change.
  • To transfer bank accounts and investments, you will need to complete a form from the financial institution and will likely need to provide a Certificate of Trust as proof of the trust’s existence.
  • You should create a list of the assets that you want to transfer into the trust, including personal property, such as jewelry and furniture, and attach this as a property schedule to the trust., indicating that ownership of these items is being transferred to the trust. Also, prepare and sign a document assigning the property to the trust.

Managing Your Trust

It’s important to stay on top of your trust. As you buy things, be sure to do so in the name of the trust and to update the property schedule. It is also a good idea to create a simple will (called a pour-over will) that will take anything you’ve forgotten and transfer it to your trust when you die.

Carefully completing your estate plan will keep things organized and give you greater peace of mind.

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A Lesson in Estate Planning

A Lesson in Estate Planning from David Bowie

Few pop stars have endured or left a legacy as diverse and successful as that of David Bowie. He died last week of liver cancer, just two days after his 69th birthday and the release of his latest album, Blackstar. He was inventive and cutting edge; the fans who transcended generations adored him. Those who didn’t know what to make of the androgynous pop star nevertheless remained fascinated by his ever-evolving, iconic personas. Over more than 50 years, he produced an extraordinary body of work that spanned music and film.

Bowie amassed considerable wealth

Bowie died a very wealthy man—his estate is worth an estimated $100M—and that’s before the inevitable spike in sales that will continue with his death. (In the 6 years since Michael Jackson’s death, his estate has grossed nearly $2B.) Yet in the 70s and 80s, Bowie struggled financially, reportedly nearing bankruptcy.

A brilliant plan for creating—and sustaining–wealth: Bowie Bonds

With the help of an investment banker, Bowie developed a brilliant plan for creating and sustaining wealth: Bowie sold a stake in his catalog of music. Instead of outright selling his songwriting, performance and licensing rights to his many successful songs, Bowie created “Bowie Bonds.” These allowed him to sell – for $55M– a 10-year investment, which operated like an annuity, providing a fixed-rate of return of 7.9%. The payouts were secured by all of his royalties and copyrights from the music. Prudential Insurance purchased the Bowie Bonds and was paid off in full during the 10-year timeframe. The Bowie Bonds transaction provided tax savings and ensured that his estate would benefit from his music catalogue.

Apparently Bowie was motivated by the desire to protect his family—his wife, Iman, their daughter, and a son from a former marriage. He had apparently always been interested in estate planning and wanted to make sure his assets passed on to his loved ones.

Bowie likely used one or more Revocable or Irrevocable Trusts

Given Bowie’s careful attention to financial planning, it’s likely that he used one or more Revocable or Irrevocable Trusts. In this way, he could have maximized the value of assets with the lowest tax consequences, but his assets could also pass privately, without the public scrutiny that accompanies Probate Court, which is the case with those who do not create a Living Trust.

Bowie’s final wishes

It was just revealed that Bowie’s $100M fortune will be distributed among his family and several loyal employees. Iman will receive half of his fortune as well as their Soho apartment; his children will each receive an estimated $25M. Bowie was a longtime Buddhist and requested that he be cremated in Bali in accordance with Buddhist rituals. He noted that if that was not practical, he could be cremated elsewhere, with his ashes scattered in Bali. The Bali cremation may have been problematic, for Bowie was cremated in New Jersey, but we can assume that his family scattered his ashes in Bali, according to Bowie’s final wishes.

A Living Trust ensures that your heirs will not have to deal with Probate and that your estate will remain a private matter. We assist our clients through every step of the Living Trust process.