The last thing anyone wants to imagine is that once you’re dead and gone your loved ones members turn on each other and fight over the estate. That is why Minnesota estate planning is so important.
The unseemly thought of family members bickering or even suing one another for a larger share of an estate is likely many people’s worst-case scenario. So common is the fear that even famous people like Frank Sinatra and Jerry Garcia both had provision written into their wills that aimed to short-circuit such feuds before they began.
So what’s the special legal provision that can help avoid contentious fights between heirs? They’re called “in terrorem” provisions and are more commonly referred to by their non-Latin name, no-contest clauses.
What’s a no-contest-clause?
A no-contest clause is a simple paragraph or so of boilerplate language that is designed to scare off potential legal challenges by heirs who don’t feel they received their fair share of the estate. The clauses work by using language which says that if a person challenges either the will or trust, that person automatically forfeits whatever inheritance was originally intended for them.
How does it work?
The exact mechanism for the no-contest clause differs in each case, but many provisions achieve their goal by including language that instructs the court overseeing the estate to consider any argumentative heirs as having died childless prior to the deceased. However, in cases where there are legitimate reasons to challenge a will it’s possible that the disputing heir could end up the victor. If a challenge is ultimately successful the entire will, including the no-contest provision, is revoked and the estate would be divided according to a different method.
The best way to view the no-contest clause is like a “Deal or No Deal” situation, but instead of beautiful women holding suitcases full of money, imagine lawyers holding suitcases full of paperwork. Your choice is to accept the inheritance that has been left to you as is, or challenge the will in the hopes of getting more and risk losing everything.
How should you construct a no-contest clause?
Estate-planning experts say that creating a workable and effective no-contest clause can be a bit like playing a complicated game of chess. To craft a provision that successfully prevents legal challenges, you have to think ahead to the potential maneuvers of your future heirs. The first point to realize is that in most cases when someone challenges a will and it is found invalid, normal rules of intestacy found in each state apply to the remainder of the assets. This means that the only people that would sue over a will are those who stand to inherit more if there were no will.
To help disincentive such a legal challenge, it’s critical that you give your heirs enough money so that they’ll be too afraid to risk losing it. If you give your heirs little or nothing, then they have almost nothing to lose and thus little reason to avoid challenging the will in the hopes of cleaning up later when the estate is distributed according to the rules of intestacy. However, if you’ve left that same heir a sizable amount, it’s likely they would not want to take the risk of losing a bird in the hand for the potential of two in the bush.
Is all this legal in Minnesota?
You betcha! Minnesota Statutes Section 524.2-517 deals specifically with the issue of no-contest clauses and says that no-contest clauses are enforceable, unless the contest is based on probable cause. This means that in cases where it is clear to the court that the challenge was based on legitimate grounds and not merely an attempt to wrangle more money out of the deceased, courts can declare the no-contest clauses unenforceable.
Though it may be confusing, creating a will does not have to be an overly complicated process. An experienced Minnesota estate planning lawyer can help walk you through the process of establishing or updating will. For more information on estate planning in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 424-0398.
Source: “Estate Planning – No Contest Clause In Your Will,” by Ronald Hudkins, published at LivingTrustNetwork.com.
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Mom had a will and trust. There is four daughters and one son. Trust listed son, myself and out of state sister. That sister had backing of other siblings to have me removed as trustee and by way of declaring the will of the trust was invalid because it was missing a signature. My lawyer never disclosed this part to me and never contested in court as he was hired to do. Only I had made copies of that portion of the trust that did have both signatures, so it was evident that she used a chemical to remove that one. I contacted county attorney and made a report,but nothing happening yet. Lawyers I have talked to are acting like there is nothing can be done, as I am still co-trustee with her for the farm that was a legal part in the trust. The trust also has a no-contest clause but lawyers say that is for heirs that weren’t listed. Now siblings want to sell farm but I want the 6 acres because I built a house on acre given by my dad. How can everyone just let her get away with fraud, submitting falsified documents to court and still all siblings get to share in any inheritance? They disposed of all personal property, I received nothing. She was named personal representative of the assets but nothing was left, and she says they will settle with me when they sell the farm. I was my moms caregiver for years, and I was okay in that duty but as soon as she died, all four were very vocal of their real feelings for me which nothing short of hate and that they never wanted to see my face again. This is a nightmare. Where is the justice?
I actually think this is great! There are so many people who think they are entitled to be an heir that they become greedy. The deceased person’s Will should be honored, whether or not the heirs believe they got what they deserved.
My mother died some 33 years ago. My father sold our family home and bought a townhouse. He remarried 2 years after my mother died and his new wife moved in with him in the townhouse. They were married 29 years when he died. He had a will that she never filed. (he died 1 year ago). A few months after his death she refinanced the house, now she is selling it. He had a will, but she never filed it after his death.
My father had 4 children (all grown when my mother died). Do we have any rights to any part of the sale of the townhouse?