Should you worry about a no-contest clause before probate court?

Dealing with the loss of a loved one or family member is never easy. One of the biggest concerns after a death is often how to handle an estate and the assets of the deceased. Even if someone reached an advanced age and had taken the time to create a valid will and estate plan, there’s still likely to be many issues. For example, perhaps the person named as executor of the estate has not fulfilled his or her duties. Perhaps you believe that undue influence or duress impacted the terms of the will.

If you need to challenge a last will or estate plan in Ohio, that means the estate will likely end up in probate court. As the person challenging the estate, you will need to provide reason for the contest or challenge, such as a breach of fiduciary duty on the part of the executor. However, if the last will contains a no-contest clause, bringing a challenge could end up impacting your share of the estate.

What is a no-contest clause and why do people include them?

When people take the time to create a last will or estate plan, they do so because they want to create a legacy. They intend to have certain assets distributed to people or charities. Outlining those wishes is a way to ensure that a lifetime’s worth of possessions has the impact the deceased planned for them. A no-contest clause is one way of protecting that legacy.

People can bring a contest against a will or estate for a variety of reasons. Sometimes, those reasons include the selfish hope of securing more than the amount of the estate allocated to an individual.

A no-contest clause creates a penalty for anyone who challenges or contests a written will or estate plan. Sometimes, the penalty means a reduction in the assets the challenging heir receives. Other times, the end result is total disinheritance for that person. The idea is to remove incentive and motivation for someone to bring a spurious challenge to an estate or will.

Ohio courts do uphold no-contest clauses

Every state in the country has its own approach to dealing with no-contest clauses. Some states, like Florida, simply do not uphold these clauses. Other states, including Ohio, do enforce no-contest clauses. In fact, in Ohio, the courts will uphold a no-contest clause even if the person who challenges the estate plan or will has probable cause and brings the contest in good faith.

In other words, if someone you love died with a no-contest clause in one’s will or estate plan, you risk a portion of all of your inheritance if you bring any kind of challenge against the estate.