Recently, I was listening to a national cable show and their estatexpert for the day was an estate planner. Prattling on about how you don’t really need a lawyer to do your own estate planning, he advised going to a website and downloading a Will form, and added, don’t forget to put a “No-Contest” clause in your Will. “That way, if Junior ever contests his share from your Will, he won’t get a penny!”
He went on to say, “All states allow a No-Contest Clause in one way or another.”
Oh, where to begin?
First, it is always better to have the expert advice of an attorney for your Estate Planning. Just like every person is different, so is every Estate. If you think some generic website loaded up with Wills will fit your needs like a glove, trust me, they won’t.
But onto the planners point: “No-Contest clauses are valid in all states.” He is dead wrong. If you insert a No-Contest clause in your Florida Will it will be invalid. Florida Statute 732.517 states that if you write a sentence into your Will or other testamentary instrument to threaten someone into refraining from acting or ceasing to act it is unenforceable.
Sometimes a testator will attempt to minimize a beneficiary’s inheritance by limiting it to a very small amount knowing that the no-contest clause will seek to take even that away if they file suit to invalidate a Will. In Florida this logic would backfire. So, if a Florida resident listened to this “expert” and inserted a no-contest clause, his (or her) intent would have been thwarted. Junior can contest this amount and might very well get a greater inheritance depending upon the evidence.
Think this can be overcome by placing the clause in a Trust instead? Nope. F.S. 736.1108, the Florida Trust Code, also states that a No-Contest clause is unenforceable.
So, next time a national “expert” claims to know what is best for you, consult a local expert on why that isn’t necessarily so.
Imagecredit: marigranula