Making a will is often a sensitive subject. Will your beneficiaries be pleased with your bequests, or will they be disappointed with how you have chosen to distribute your assets?
If you are worried that disappointed or disgruntled beneficiaries might try to contest your will, you might consider including a no-contest clause in your will in Texas.
What is a no-contest clause in a will? A no-contest clause states that if a beneficiary challenges the will and loses, then they will inherit nothing.
You are probably wondering, Should I include a no-contest clause in my will? There are a couple of things you should consider before settling on an answer.
In this blog post, the estate planning lawyers at Massingill team will discuss what a no-contest clause is, who should consider using one, and provide some general information on when a no-contest clause can work best.
What Is a No-Contest Clause in a Will?
Simply put, a no-contest clause is a provision in a will that disinherits a beneficiary who unsuccessfully contests the will.
But knowing what is a no-contest clause provides only half the information you need. You also will have to give something of value to your beneficiaries in exchange for including a no-contest clause.
A no-contest clause would work like this: Rather than leaving nothing to a son Mr. X hasn’t spoken to in 20 years, he leaves him $5,000. To each of his remaining four children, Mr. X leaves $500,000.
A no-contest clause in a will in Texas would provide that if the estranged son challenged the will and lost that challenge, he would not receive the $5,000 left to him.
Who Can Contest a Will?
Generally, only those people with a personal financial interest affected by the probate of the will can contest it. In Texas, a will can be contested in a probate proceeding.
Some of the grounds on which a will can be contested include:
- Lack of proper will formalities,
- Undue execution,
- Undue influence on the testator,
- Revocation of the will,
- Lack of testamentary capacity,
- Fraud, and
- Mistake.
When a Texas probate court receives a will, the beneficiaries of that will must wait two weeks before making an application to have the will admitted to probate.
The probate process can be stopped if a beneficiary enters a challenge to the will during this period.
If the will has already been admitted to probate, someone with a financial interest can contest the will for up to two years from the time it was admitted to probate.
A no-contest clause in a will in Texas cannot prevent a will contest during that two-year period, but it can reduce the chances of a contest by making the stakes higher.
When Are Will Contests Likely?
Will contests are most likely when there are disgruntled or disinherited heirs.
A disinherited heir is someone who would inherit under the intestacy statutes if there was no will in place but who ends up getting disinherited or receiving a substantially smaller inheritance than they would have received if there was no will.
If you die without a will, the state intestacy statutes govern who will inherit your property.
Usually, if you die without a will, your property will pass to your direct descendants in equal shares. Suppose Mr. X from our example above died without a will.
Even though he had not spoken to his son for 20 years, state law would give that son the same inheritance rights as his four other siblings. Each child would receive 20% of the estate.
However, if Mr. X created a will disinheriting his estranged son, that son would have an incentive to challenge the will after Mr. X’s death.
Successfully challenging the will would mean the difference between a $5,000 inheritance and a $500,000 inheritance for the estranged son.
Because a beneficiary risks losing their original inheritance, a no-contest clause can dissuade a disgruntled beneficiary from contesting a will.
Can You Include a No-Contest Clause in a Will in Texas?
Most states allow no-contest clauses, but there may be restrictions. Texas allows no-contest clauses but is cautious about enforcing them.
In Texas, if a challenge to the will is brought in good faith, the court will consider the challenge and may allow the challenger to receive at least some of their inheritance despite the no-contest clause.
Most Texas courts want to see beneficiaries receive at least something under a will and believe that if a contest was brought in good faith, there should be no forfeiture of their original bequest.
How a Texas Estate Planning Lawyer Can Help
Drafting a will is complex, and the estate planning attorneys at Massingill strives to simplify the process. We work with clients to help them make an estate plan tailored to their needs and wishes.
Thanks to our legal experience and collaborative spirit, we have earned over 150 5-star reviews on Google.
We offer flat fees, so our clients aren’t left guessing what the final bill will be. Contact us online or call our office today to schedule a consultation via phone, video, or in person.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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