You’ve heard of a “No-Contest” Clause, yes? It’s a provision in an inheritance document that says, in effect, that a beneficiary who contests, opposes or attacks the inheritance document gets “cut out” as a beneficiary. We lawyers crafted those provisions so broadly that it could be argued that ANY conduct could be considered a “contest”. (“Hey…Beneficiary…I don’t like the way you looked at that Will. You’re cut out!”) Well…those were the old days…because the California Legislature made a law which said that most No-Contest Clauses are invalid! Why? Because those clauses were extinguishing legitimate contests. So…as we sit here today…with “No-Contest” Clauses in a highly-watered-down state…California is the “Wild West” for Trust and Will litigation brought by disgruntled beneficiaries.
There are only three types of parties in Trust/Will litigation. The first is the “Personal Representative”…the one who is appointed by the inheritance document signer to carry out the inheritance instructions. The second is a beneficiary of the inheritance document. The third is NOT mentioned in the inheritance document as a beneficiary but believes he or she SHOULD have been listed as a beneficiary.
In my 25 years of representing all three types of parties in Trust/Will litigation, my philosophy has been to attempt avoid the “money and time suck” that is inherent in any lawsuit (not to mention the stress!) by arriving at some resolution that can be lived with all around. But if such attempts do not bear fruit, then it’s “Litigation Time”…and I am an experienced practitioner in that area and stand at the ready for vigorous representation.
Preparation from Living Trusts and Wills
These are the documents that contain your inheritance instructions. Sounds easy, right? Just tell me who you want to get your stuff after you die and I incorporate it into some “mostly boilerplate” inheritance document? I wish it was that simple! But, there are a myriad of questions that I will ask you…many of which you never thought to ask yourself:
Who will get your assets after you die?
At what age should they inherit?
How will they inherit…outright or some form of “Protection Trust”?
Will there by an conditions to them receiving you assets, such as attaining certain educational or lifestyle goals that you want them to accomplish?
Do your inheritors have any qualities that would pose a risk of loss to their inheritance, such as addiction or financial immaturity?