A will is a plan for what happens to your assets when an individual passes away. Typically, people use a lawyer to craft an estate plan. The entire estate plan covers everything from willing personal and deeded property to retitling property and tax planning.
Most wills contain provisions protecting the decedent’s (person who died) wishes. One of these provisions is a “no contest clause.”
What Is a No Contest Clause (NCC)?
A no contest clause is a will provision stating if a party named in the will challenges the will and loses, then the person bringing the challenge is barred from receiving as a beneficiary. The purpose is to discourage beneficiaries from fighting over the estate or filing a lawsuit that encumbers estate assets for many years.
For example, you leave each of your four children a different family heirloom in your will with an NCC. The youngest is unhappy with what you left her and wants the eldest sibling’s heirloom. Should the youngest try and get the eldest’s heirloom, she would lose out on the heirloom she received all together.
NCC’s usually also include a provision stating that the attorney who drafted the will represents only the testator, and not any of the beneficiaries. This provision does not discount the attorney from representing a beneficiary, but ensures that the attorney may choose to represent a beneficiary at his or her own discretion.
Why No Contest Clauses are Important?
Though no contest clauses are not necessary, they are helpful. No contest clauses show the testator’s clear intentions. You as the testator should have a say in who gets what after you are gone. By clearly stating in your will which assets go to whom, and stating if they choose to contest it, they could lose out entirely, the clause discourages pointless litigation. Both time and money can be lost and at the end of the day leave parties with nothing.
If you don’t give your assets in a will, then your estate will pass according to the laws of intestacy in the state of South Carolina. Your family and loved ones will have to go through probate to distribute everything using the state’s laws, not your wishes. Probate can be a difficult and confusing and ultimately drag out much longer than expected. If your estate goes through probate, your assets can end up with someone you never intended them to.
Reasons for Challenging a Will Even If It Contains a No Contest Clause
A will can be challenged for various reasons. The most often cited reasons for a will contest is capacity. Sometimes when a person ages, he or she will alter their will and estate plan. If the creator of a will lacked capacity at the time, then a beneficiary can challenge the will.
Other reasons for challenging a will are because of fraud or because the will was created under duress.
Whatever the reason for contesting a will, if a beneficiary challenges and loses, then that individual will not receive anything under the will. There are times, however, when it makes sense to run the risk and challenge the will. Only a lawyer can help you determine if you should challenge or not.
Each will and estate plan is different depending on a testator’s wishes. If you need help probating an estate or want to speak with someone about setting up a will and estate plan, please call our office at 843-212-3188 to set an appointment.