As difficult as it can be, it is generally preferable to put one’s final wishes in writing rather than depend upon the law of intestate succession as a de facto estate plan. Writing a will allows the drafter of it (known as a testator) to designate an executor, make specific bequests of property, and designate who will receive the residuary estate. However, there is always a chance that a disgruntled heir may contest the will after the testator’s death. Forfeiture or no-contest clauses are sometimes used to discourage will contests. Nashville estate planning lawyer Randy Ratliff can help you understand the risks and benefits of using such a clause as part of your last will and testament or another testamentary instrument.
To understand how a forfeiture or no-contest clause works, it is helpful to understand the basic process of probating a will. “Probate” is simply a court-supervised process in which a representative is appointed to administer a deceased person’s estate. This involves identifying the decedent’s assets and liabilities, paying legitimate debts, and disbursing the remaining property according to law. If the deceased person had a valid will, the property is divided according to the terms of the last will and testament. If there was no will, the law of intestate succession in the decedent’s state of residency applies.Wills, Probate, and No-Contest Clauses Under Tennessee Law
In order for a will to be considered valid, the person making the will must have been legally competent to make it out and must not have been acting under the undue influence of another person. If the will is typewritten, the testator must sign the will in the presence of two disinterested witnesses in order to make it legally valid in Tennessee. Once these basic requirements are met, the document will usually be admitted to probate. However, if a potential heir is able to prove that the will is invalid for some reason, such as fraud, mistake, forgery, undue influence, lack of testamentary capacity, or duress, the will may be declared invalid in whole or in part, thus causing the decedent’s property to pass according to the rules of intestate succession or possibly a prior will.
A forfeiture or no-contest clause can serve as an incentive for an heir not to contest a will. If the clause is valid, and if the will is ultimately accepted by the probate court as legitimate, a person who challenges the will in court stands to lose any inheritance provided to them as set forth in the will. Such a clause may say something like, “Anyone who challenges this will in court, he or she shall forfeit any inheritance that they otherwise would have received under its terms.” If a particular heir is unhappy that they are receiving less under the will than they would under the law of intestate succession or under a prior will, a forfeiture clause serves as an incentive for that person not to contest the will because, if they lose the will contest, they will receive absolutely nothing. Of course, this is only effective if the heir receives enough in the will that they are not willing to risk losing it.Get Started on Your Estate Plan with a Helpful Nashville Attorney
At the Law Offices of Randy Ratliff, PLLC, we assist people in cities such as Nashville, Brentwood, Cool Springs, and Franklin, as well as other communities in Davidson and Williamson Counties. To schedule an appointment with a dedicated wills and trusts lawyer, call us at 615-656-8282 or contact us online. We also handle asset protection planning, probate, Medicaid planning, family law, and elder law matters. While talking about issues such as death, disability, and potential family discord can be uncomfortable, speaking with a trustworthy attorney about your situation can put your mind at ease and greatly reduce the possibility of complications later, keeping your family matters private and manageable.