Will Contest Clauses

On the one hand, a will is a legally binding document, your last flex to show your ungrateful children that they don’t get a penny and your favorite wildlife rescue shelter gets your entire estate.  On the other hand, a will is just a wish that a dead person made before dying.  A will can supersede the laws of intestate succession, but it cannot change the laws of physics or mathematics.  If the person the will designates as personal representative of the estate predeceased the testator of the will, for example, the will cannot resurrect the personal representative for the duration of the probate case.  Instead, the probate court must appoint the designated successor personal representative, if the testator had the presence of mind to designate one; if not, the probate court must designate someone else.  Likewise, if the will says that an heir will receive X amount of money, that is only possible if the value of the estate is greater than or equal to X when the creditor claims have been settled; some estates are insolvent by the time they settle, which means that the heirs inherit nothing.  Furthermore, where the will conflicts with Florida law, the probate courts of Florida will follow Florida law.  To make sure your will does not conflict with Florida law in ways that could complicate your probate case, contact an Orlando estate planning lawyer.

Who’s Afraid of in Terrorem Clauses?

Of all the intimidating Latin terms in the legal profession, in terrorem is one of the scariest.  In probate law, an in terrorem clause is one that says that, if you are a designated beneficiary of a will, and you contest the will to get a bigger inheritance but you lose your challenge, you forfeit the inheritance originally designated for you in the will.  The purpose of these clauses is to discourage frivolous challenges to wills, so that the only people who challenge wills are those to whom the testator left nothing.  Most wills do not contain in terrorem clauses, but testators can add them if they are worried that their relatives will use the probate court as a venue for antagonizing each other.

You Have the Right to Contest a Will, Even If It Says You Don’t

Your civics teacher always said that the laws that affect your daily life are state laws, and this applies in probate matters, too.  Each state can make its own laws about whether to enforce in terrorem clauses in wills.  In Florida, in terrorem clauses are not enforceable.  This means that beneficiaries who get an inheritance, but not as big an inheritance as they wanted, still have the right to challenge the will, even if the text of the will says that they cannot.

Contact Gierach and Gierach About Estate Planning to Prevent Conflict

An estate planning lawyer can help you craft your estate plan to prevent family conflict, even if you do not have recourse to in terrorem clauses.  Contact Gierach and Gierach, P.A. in Orlando, Florida to discuss your case.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.517.html