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Why including a no-contest clause in your will may be ideal

Are you looking to plan your estate soon? If so, then you may wish to consider including an "in terrorem," or no-contest, clause when drafting either your will or living trust documents.

No-contest clauses have long been included by celebrities and philanthropists when planning their estates. When included as part of a will or trust document, they make it where anyone who chooses to file a lawsuit to contest the authenticity of a will automatically loses his or her ability to inherit any proceeds from it just for doing so.

Most legal expects argue that they're just what a client needs if he or she intends to either wholly disinherit his or her children and instead will his or her assets or trust to a new spouse, friend or charity. If one child is slated to receive less of an inheritance than another, then these circumstances may warrant a no-contest clause being included as part of a living will or trust as well.

Having this type of clause written into one of these estate planning documents is particularly important, especially in light of the fact that we've all living longer lives. After all, one of perhaps the most common reasons a will is contested is because someone who was written out of it suspects that the testator had inferior mental capacities when he or she wrote it.

In those types of situations, if an "in terrorem" clause would have been in place, then a potential heir might have been discouraged from questioning his or her loved one's state of mind, and thus, the validity of the will.

That's not to say that a valid challenge to a testator's testamentary capacity won't be heard by a judge, even if there is a no-contest clause in place. It still will be.

When wills are found to have been signed under duress or without the testator having all of his or her faculties about him or her, then a probate judge may order assets be distributed in alignment with state law.

If you'd like to gain a better understanding as to whether adding a no-contest clause in your will or living trust may be right for your situation, then a Queens attorney can advise you of that.

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