When a will is created, an in terrorem clause, also referred to as a no-contest clause, can be included to prevent disputes about the provisions made in the will. Because disputes can drain time and resources from the ultimate settlement of the affairs of the deceased, it is certainly best to avoid them, optimally through careful estate planning.
Not Always Enforceable
The end goal of estate planning is to ensure the intentions of the individual making the plan are carried out. In addition to the time and money involved in probate litigation, disputes over the provisions in wills can lead to deep, painful and lasting familial conflict. Estate planning experts remind us that when time is on our side, clearly communicating estate plans is best for families and friends, even if the decisions come as a surprise or are difficult to discuss. In addition to efforts to communicate clearly about estate planning decisions, legal tactics, like in terrorem clauses
(aka no-contest or forfeiture clauses) can help to prevent unnecessary probate litigation, and honor the intentions of the deceased; however, in terrorem clauses are not a guarantee that litigation will not ensue:
In terrorem clauses… are clauses in a will that impose a condition upon a devisee or legatee that they will not dispute the provisions of a will. Such clauses are used to discourage challenges to a will and keeping the will out of a long probate by revoking a beneficiary’s interest or inheritance if the beneficiary violates the clause. These clauses are generally enforceable in most states but are often disfavored and subject to strict construction, such that they do not grant or hold absolute authority over the distribution of the testator’s interests. The extent of enforceability and limitations differ greatly between states. Many states limit the enforceability of in terrorem clauses to ensure beneficiaries can challenge fraudulent conduct or other conduct against public policy.
New York State, for example, recognizes in terrorem clauses, though exceptions to the in terrorem clause are possible:
New York Estates, Powers and Trusts Law (“EPTL”) 3-3.5(b) sets forth a non-exhaustive list of exceptions where an in terrorem clause will not be triggered by a beneficiary’s actions regardless of the terms of the in terrorem clause. These statutory “safe harbors” include:
- Objections (with probable cause) on the grounds of forgery or revocation by a later Will;[ii]
- Objections by the guardian of an infant (i.e., minor);[iii]
- Objections to the jurisdiction of the court probating the Will;[iv]
- Disclosing information to the court related to any document offered for probate as a Will or relevant to the probate proceeding;[v]
- Refusal or failure to join in the probate petition or executing a waiver of a citation;[vi]
- Requesting preliminary examinations (i.e., pre-objection discovery) under New York Surrogate’s Court Procedure Act (“SCPA”) 1404; and [vii]
The Role of Executors and Executor Bonds
When a will is created, one of the important decisions made is the designation of an executor, the fiduciary who will ultimately carry out the plans of the deceased, following state probate protocols. Given the responsibilities of the executor, it is common for a fiduciary bond, frequently referred to as an executor bond, to be required during probate. Like all probate and fiduciary bonds, the purpose of an executor bond is to protect the beneficiaries and assets of the deceased while affairs are being settled. Colonial Surety Company makes it quick and easy to obtain executor bonds. A user-friendly online service allows you to quote and obtain an executor bond that is instantly available to download or e-file with the probate court.
Estate and probate attorneys can help clients secure executor–and all types of court and fiduciary bonds–with a few clicks on The Partnership Account® for Attorneys. Just select the bond needed, send it to your client for payment, and then download, e-file or print the bond.
Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
Speedy, easy court and fiduciary bonds are right here:
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