Florida Estate Planning Attorneys Explain No-Contest Clauses in Will Preparation

last willWhen one sets out to create an estate plan, he or she does not expect family members to bicker and fight over the decisions. An individual especially does not want loved ones taking other family members to court and creating rifts. However, it is common. This is why some implement no-contest clauses in the estate plan. The hope is that the clause will prevent family members and beneficiaries from arguing and drawing out the administration of the estate.

What is a No-Contest Clause?

No-contest clauses, also known as terrorem clauses, are a written instrument in a will or trust that essentially threatens beneficiaries. It notifies all beneficiaries that they should refrain from taking action against the estate or they will be disinherited from the will or trust assets. No-contest clauses are designed to prevent any challenges to the terms of a trust or will.

Section 2-517 of the Uniform Probate Code does allow for a no-contest clause in an estate plan, as long as the individual challenging the will does not have probable cause for doing so. Some states, however, have implemented provisions in their estate laws identifying which causes can be challenged.

Does Florida Allow a No-Contest Clause?

Florida is one of the few states that no longer follows the Uniform Probate Code. It does not recognize nor enforce a terrorem clause in an estate plan. Instead, Florida’s Probate Code Section 732.517 states that any provision that penalizes interested persons from contesting a will or trust is unenforceable.

Trusts created on or after October 1, 1993 could use a no-contest clause, but that clause is unenforceable per Florida Probate Code Section 736.1108.

When an Estate Plan is Drafted Before the Cutoff Date

If an estate plan is drafted prior to October 1, 1993, there may be grounds for a beneficiary to contest an existing will. However, he or she must have probable cause for doing so. The definition of probable cause and contest vary, but it is generally agreed that the following “contest” reasons occur:

  • Lack of capacity
  • Fraud
  • Undue influence
  • Improper execution
  • Forgery
  • Subsequent revocation

Courts in Florida have had to interpret no-contest clauses in older estate plans. There have been instances when probate court judges enforce the no-contest clause, while there are other instances when the judge feels that the beneficiary’s “contest” did not apply to the no-contest clause.

What Can You Do Without a No-Contest Clause?

You want to prevent family members from bickering. Because Florida courts no longer recognize no-contest clauses, your best line of protection is to have a well-drafted and properly executed estate plan. You can do this by having a Florida estate attorney prepare your estate plan for you.

Meet with the attorneys at Beller & Bustamante, P.L. today to explore your options. Already have an estate plan? Our attorneys can review it and help pinpoint potential problem areas, so that we can help reduce the likelihood family members will fight later.

Schedule a consultation today by calling 904-288-4414, or ask our attorneys a question online.