For most of my clients, the primary motivation for executing a Last Will and Testament or a Revocable Trust, is to ensure that their estate assets are distributed according to their wishes after they are gone. One of the benefits of having a comprehensive estate plan in place is that it decreases the likelihood of disputes over your estate after you pass away. Sometimes, however, a client has reason to believe that a loved one will challenge the Will or Trust regardless of how carefully it is prepared and executed. In that case, I often encourage the addition of a “no contest” clause in the Will. Allow me to explain how a no contest clause in a Maryland Will works and why you might want to include one in your Last Will and Testament or Trust.
Maryland Will Contest Basics
To understand how your Last Will and Testament or Trust might benefit from the addition of a no contest clause, you first need to understand what happens when a Will is contested in Maryland. A Last Will and Testament or Trust is a legal document that effectively creates a roadmap for the distribution of your estate assets after your death. Shortly after you pass away, your Will should be submitted to the appropriate court for probate. One of the functions of probate is to authenticate the Will submitted to the court. It is during this step of the probate process that any “interested person” can challenge (contest) your Will. An “interested person” usually refers to a beneficiary under the Will submitted for probate, a beneficiary under a previous Will, a legal heir, or a creditor of the estate.
To contest the Will, the contested must allege (and ultimately prove to be successful) legal grounds on which the Will can be declared invalid. Typical grounds used to contest a Will include lack of testamentary capacity, undue influence, or improper execution. If the contestant is successful, the Will submitted for probate is declared invalid and the court will look for a previous valid Will to use to probate the estate. If no previous Will exists, the Maryland state intestate succession laws are used to determine what happens to the estate assets.
What Is a No Contest Clause?
A no-contest clause, formally referred to as an in terrorem clause, is a provision in a Last Will and Testament or Trust that is designed to discourage beneficiaries from challenging the Will’s validity. Whether or not a no contest clause is enforceable is determined by state law. Under Maryland law, a no contest clause is generally enforceable. Although the law requires a contestant to allege legal grounds on which the Will could be declared invalid to proceed with a Will contest, disgruntled beneficiaries frequently initiate a Will contest simply because they are unhappy with the terms of the Will – not because they truly believe the Will is invalid. The primary purpose of a no contest clause is to preserve the Testator’s intentions by deterring this type of baseless legal dispute.
How Does a No Contest Clause Work in Maryland?
Imagine that you have an estate valued at $10 million. You have three adult children and you are relatively sure that one of them is not going to be happy about the terms of your Will, likely leading to a Will contest. Your children are your only legal heirs, meaning that they would be entitled to equal shares of your estate under the Maryland intestate succession laws. Each child would inherit (roughly) $3.3 million from your estate under intestate succession; however, you do not want to split your estate equally. To discourage the child you believe will contest your Will from doing so, you leave that child $500,000 in your Will and include a no contest clause. That no contest clause effectively says that your child forfeits the $500,000 inheritance if they contest your Will, leaving your child with the option to accept the sure thing ($500,000) or give that up and gamble on being successful in a Will contest that would result in an inheritance of $3.3 million if they win, but nothing if they lose. The Clause works essentially the same way if included in a Trust.
Do You Have Additional Questions about a Maryland No Contest Clause?
For more information, please contact our estate planning office in Owings Mills, Maryland by calling 410-654-3850 to schedule an appointment.
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