Adding a special clause can help keep your estate out of probate

by | May 26, 2018 | Estate Planning |

One of the reasons that people take the time to create an estate plan is because they don’t want to have their assets stuck in probate limbo for months. For many people, estate planning is a means of creating a legacy. Whether that’s leaving certain cherished items to specific people or allocating some of your funds toward a charity you support, that legacy will be in part why people remember you.

It’s only natural to want to protect that legacy from family members who may want more than their fair share. You may have already taken some steps while planning your estate to reduce the risk of probate. There’s one final step that you can take if you really worry about someone contesting your will. It involves adding a special no-contest clause to your last will or trust.

What is a no-contest clause?

Like the name implies, a no-contest clause is language in a last will, estate plan or trust that prohibits heirs or family members from challenging or contesting the document. Typically, the way these clauses work is by levying a punishment or penalty against an heir or beneficiary who brings a challenge.

In some cases, that penalty could involve forfeiting a certain amount of the inheritance, such as the amount it costs to go through probate court. In other scenarios, however, these clauses could result in the complete disinheritance of someone listed in the will.

The threat of losing out on assets from an estate could keep most people from bringing a challenge. However, those receiving small inheritances or those not already included in the will who may have a claim to the assets of the estate through familial relation could still contest the will, since they likely won’t lose anything expect for attorney costs and court fees if they lose.

Wisconsin courts do uphold no-contest clauses

Every states has its own laws regarding estates and probate. Wisconsin, thankfully, recognizes the right of the testator creating a will to prevent heirs or family members from challenging a will. Both the law and the precedent set by Wisconsin probate courts indicates that your no-contest clause will probably hold up if challenged by someone.

It is important to realize, however, that there is a limit to this rule. If the courts believe that the person brought the challenge on probable cause, they may not enforce the no-contest clause in that case. Probable cause in this situation would refer to evidence that supports a belief of undue influence, duress or incapacity at the time the testator created or revised the last will or estate plan. In most other situations, the courts will uphold the clause and protect your wishes and legacy.


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