In the State of Florida, there are laws set in place to help dictate how a person’s property will be distributed once he or she passes away whether it is through a valid will or without one. The best way to make sure that assets and property are distributed amongst inheritors and beneficiaries the way you wish them to be is by creating a Last Will and Testament prior to your death.
However, not all family dynamics are amicable or placid so a will or trust may be contested. Litigation due to will and trust disputes can be quite extensive and costly. In order to prevent disputes between the family, someone receiving more or less than intended, or depleting financial resources of the estate, many people look to include a no contest clause. While a no contest clause may seem like a simple solution to protect a Last Will and Testament, in Florida it is not. If you wish to contest a will or protect your will by incorporating a no contest clause, then seek the assistance of an experienced attorney. At The Law Office of Silverman, Mack & Associates, we can provide you with a Gainesville probate attorney you can trust.
What Is A No Contest Clause?
A no contest clause, also known as an in terrorem clause, is a provision in a will or trust designed to prevent or discourage a person from contesting or challenging the validity of a will or trust instrument. The clause does this by penalizing the person who chooses to challenge the validity of the terms of the instrument with complete disinheritance or blockage from receiving anything from the decedent. In other words, any person who chooses to fight a will or trust will lose all rights to receive any gift or devise under the will or trust.
Does Florida Recognize No Contest Clauses?
While some states recognize and enforce no contest clauses, the State of Florida does not. According to the Florida Statutes Chapter 732.517, “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.” It’s sister statute, Florida Statute Chapter 736.1108, also states that, “a provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.”
According to Dinkins v. Dinkins, 120 So.3d 601 (Fla. 5th DCA 2013), Florida does not recognize no contest clauses because the right to contest is, “essential to the integrity of the estate disposition process, because beneficiaries must be able to obtain, and courts must be able to provide, a determination of the instrument’s validity.” What this means is that a beneficiary cannot be forced to decide between contesting or accepting a will or trust.
Pros & Cons of Contesting a Will
Many people choose to contest a will in order to:
- Ensure that the wishes of the deceased are respected if the will does not seem to reflect what the deceased person truly would have wanted.
- Prevent an inheritance from going to someone who coerced or defrauded the deceased person by manipulating him/her into changing the wil near the end of his/her life.
- Increase the amount of money or property received if the original amount seems unfair or incorrect.
Some of the disadvantages of contesting a will include:
- Contesting a will or trust can make the probate process take much longer, lasting up to several years.
- Challenging a will or trust will drive up the cost of the probate process for that particular case.
- Contesting a will or trust could lead to potential disharmony amongst family members.
Probate Lawyers in Gainesville, FL
Although the State of Florida does not recognize no contest clauses, there are other alternatives if you wish to prevent or minimize potential litigation risks to your will or trust. Our Florida probate law firm can assist you in creating provisions or incorporating other clauses that may help keep a dissatisfied beneficiary from challenging your will. On the other hand, if you wish to contest a will, our probate lawyers in Gainesville have the necessary knowledge and experience to guide you through the entire process; contact us today.