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Should Colorado testators add no-contest clauses to their wills?

On Behalf of | Aug 22, 2023 | Probate, Trust & Estate Administration |

Many adults in Colorado choose to draft a will that designates specific beneficiaries for their various assets and that potentially names someone they trust to serve as a guardian for their children. After someone dies, their will determines who inherits from their estate and who holds a position of authority over the administration of that estate.

Usually, the surviving family members of someone who has recently died are simply grateful that the decedent had the foresight to plan for their passing. However, there are those who might take issue with someone’s estate plans and could choose to drag the whole family through litigated probate proceedings because they want more from the estate or are unhappy with their inheritance. Should those drafting a will add a no-contest clause to keep their families out of court?

No-contest clauses are enforceable in Colorado

A no-contest clause is a special addition to a will or other testamentary instrument that imposes a penalty should someone challenge the wishes of the testator. Also known as en terrorem or penalty clauses, no-contest clauses typically strip someone of their inheritance rights if they bring a frivolous challenge against someone’s estate. Like the majority of other states, Colorado allows testators to include such clauses in their wills. A probate court judge can disinherit someone who brings a challenge against someone’s estate plan without probable cause.

Only in scenarios where there is very convincing evidence of misconduct or a lack of testamentary capacity will the courts potentially set aside a no-contest clause if someone challenges an estate. Therefore, the addition of such a clause can be a smart move for someone who believes that one of their beneficiaries or family members would be likely to initiate litigation in probate court.

Informing loved ones is also a smart move. If family members know what they will inherit from the estate long before someone dies, they are less likely to have a negative emotional reaction during the probate process. Additionally, those who are aware of the chance of losing their inheritance over a frivolous claim might be less inclined to challenge someone’s will, in action which might undermine a testator’s wishes and diminish the value of their estate.

Including thoughtful terms in an estate plan and ensuring that family members are aware of one’s wishes can go a long way toward diminishing the risk of conflict that sometimes arises during estate administration.