Probate and Estate Planning Myths: The Truth About "No Contest" Clauses

Dan McKenzie • Oct 17, 2023

If you are involved in probate or estate planning, you may have heard of "no contest" clauses. These provisions in a will or trust say that anyone who challenges the document's validity or the executor's actions will forfeit their inheritance. Sounds simple, right? Well, not quite. There are some common misconceptions about how these clauses work and their effectiveness. Here are some facts you need to know.

Myth #1: A "no contest" clause protects the executor from any liability

Some people think that the beneficiaries can't question how they choose to administer the estate if they are named as the executor of a will or trust with a "no contest" clause. This is not true. An executor has a fiduciary duty to act in the best interests of the estate and the beneficiaries. This fiduciary duty cannot be waived. Whether there is a "no contest" clause, the executor must follow the will or trust terms, keep accurate records, pay taxes and debts, distribute assets, and report to the court. If they fail to do any of these things, they can be held liable for breach of fiduciary duty.

For example, suppose an executor fails to account for the estate assets or delays the administration of the estate. In that case, the beneficiaries can sue them for damages and will not lose their share of the estate, even if there is a "no contest" clause. The "no contest" clause only prohibits the beneficiaries from challenging the substantive decisions made by the decedent.

Myth #2: A "no contest" clause prevents anyone from challenging the will or trust

Some people think that if they include a "no contest" clause in their will or trust, they can disinherit anyone they want, and there is nothing those people can do about it. This is not true either. A "no contest" clause only disincentivizes people from challenging the plan documents and only works if the beneficiaries have something to lose by doing so. People wholly disinherited have nothing to fear because they have nothing to lose.

For example, suppose someone leaves their entire estate to their caregiver, disinherits their children, and includes a "no contest" clause. In that case, the children may still challenge the will or trust for undue influence, fraud, lack of capacity, or other reasons. And they probably will do so since they would not get anything anyway, absent the challenge.

A "no contest" clause only works as a deterrent if the beneficiaries are entitled to receive enough from the estate that they are scared to lose if they challenge it. People often ask us how much they should give to a beneficiary to make the "no contest" clause effective. That depends on many factors, including the beneficiary's expectation about what they would receive, the beneficiary's financial position, the beneficiary's anger about their disfavored position, the beneficiary's feelings toward and relationship with the other beneficiaries of the estate, the size of the estate, and the reason for the disinheritance.

Myth #3: A "no contest" clause is always valid and enforceable

Some people think that if they include a "no contest" clause in their will or trust, the court will automatically uphold it and dismiss any challenges. This is not true either. A "no contest" clause is not a magic bullet that can shield a will or trust from scrutiny. Courts know that sometimes people use undue influence, fraud, coercion, or other improper means to get someone to create a will or trust that favors them. They are also aware that sometimes these same people use these same means to get them to include a "no contest" clause in the document.

So, courts do not necessarily take "no contest" clauses at face value and will still evaluate them through litigation. They will look at factors such as the reason for the challenge, the strength of the evidence, the relationship between the parties, the size of the estate, and the public policy implications. Courts may enforce or invalidate a "no contest" clause depending on these factors.

The bottom line is that probate and estate planning are complex and nuanced law areas requiring professional guidance and advice. If you are an executor or a beneficiary of a will or trust with a "no contest" clause, or if you are considering including one in your estate plan, you should consult an experienced attorney who can help you understand your rights and obligations and protect your interests.

What next?

If you think it might be time to think through your estate plan, you can:



  1. Call at 720-821-7604 to schedule an "Attorney Evaluation Session," to determine whether our firm would be a good fit for your needs. Or fill out our contact form to have us call you.
  2. Visit our estate planning page to learn how proactively thinking through your estate plan can protect you and your family, minimize hassle, lower the chance of family discord, and minimize or eliminate taxes.
  3. Learn more by reading our blog or watching our videos.

The Probate Process in Colorado

30 Apr, 2024
The Probate Process in Colorado

When and How Often Should You Update Your Estate Plan?

By Dan McKenzie • 04 Apr, 2024
The most common questions we get about estate planning are when to start it and how often to update it. Learn more about how we advise our clients on these questions here.

The Importance of Estate Planning: Avoiding Probate and Protecting Your Assets

By Dan McKenzie • 29 Mar, 2024
Proper estate planning is not just about saying who gets what when you die. Done correctly, it can help you avoid court and maintain privacy.

Understanding Probate in Colorado: The Guide to Timelines, Steps, and What to Expect

By Dan McKenzie • 28 Feb, 2024
If you have recently lost a loved one, you might find yourself participating in a probate process, either as the executor or a beneficiary. Learn more about what to expect from that process here.

Sharing Your Estate Plan: A Delicate Balance

By Dan McKenzie • 04 Feb, 2024
One of the most common questions we receive is whether or not to share the details of an estate plan with adult children. This decision is personal and can have far-reaching implications for the individual and their family. The Benefits of Sharing Your Estate Plan Sharing your estate plan with your adult children can be beneficial. Doing so allows the family to discuss the plan's details, including what needs to be done in the event of incapacity or death. This open communication can help set expectations and facilitate a smooth estate administration process. A discrepancy between the plan and what the family expected is one of the most significant sources of tension and difficulty during the estate administration. It can be helpful to identify and resolve the discrepancy while the person who can change the plan can either still do so or explain why they designed the plan the way they did. Our firm generally recommends communication with fiduciaries and beneficiaries about the plan. However, communication does not necessarily mean sharing the complete draft of the estate plan. The Risks of Sharing Your Estate Plan While there are benefits to sharing your estate plan, there are also potential drawbacks. One of the main concerns is that sharing the estate plan can create difficulties if the plan is changed after it has been shared. This can be particularly problematic if any of the beneficiaries of a previous plan will receive less from the new plan. Another risk is the possibility of inconsistent plan drafts circulating after death. This can lead to confusion and potential disputes among beneficiaries. Suggestions for Communicating Your Estate Plan Given these considerations, here are some suggestions on how to best communicate the details of your estate plan: Maintain a Record : Record what has been shared, who it has been shared with, and when it was shared. This can help ensure everyone is on the same page and minimize potential misunderstandings. Share Digital Copies : Consider sharing digital copies of your estate plan, accompanied by a cover letter or mark reminding everyone that the plan can change. This can help mitigate the risk of outdated drafts circulating. Provide a Summary : Instead of sharing the entire plan, consider providing a summary. This can give your family a general idea of your intentions without divulging all the specifics. Again, include a disclaimer that the plan can change. Remember, every situation is unique, and what works for one family may not work for another. It’s essential to weigh the benefits and risks before sharing your estate plan. As always, we’re here to help guide you through this process. Please note that this blog post is intended for informational purposes only and does not constitute legal advice. Always consult a qualified estate planning attorney for advice on your situation.

Contesting a Will in Colorado: A Simple Guide

By Dan McKenzie • 29 Dec, 2023
If you are unhappy with the terms of a will, you may have the right to challenge it in court. However, contesting a will is not easy and requires certain legal grounds and procedures. This blog post explains the basics of how to contest a will in Colorado, including who can do it, what reasons are valid, and what steps are involved.

What to Do If You Think Your Trustee Is Not Doing Their Job Right

By Dan McKenzie • 26 Dec, 2023
Explore the essential steps to take when a trustee is not fulfilling their duties effectively. This guide provides practical advice on identifying trustee shortcomings and the legal actions available to address them. Ensure your trust is managed properly with our expert insights on trustee responsibilities.

What is the Formal Probate Process in Colorado and When Do You Need It?

By Dan McKenzie • 24 Dec, 2023
The blog post outlines the formal probate process in Colorado, detailing when it's necessary and the steps involved. It serves as a guide for individuals navigating the legalities of estate management after a loved one's passing. The content is informative and designed to assist users in understanding the complexities of probate law in Colorado.

How to Start an Informal Probate Process in Colorado

By Dan McKenzie • 24 Dec, 2023
Discover the straightforward steps to initiate an informal probate process in Colorado with our concise guide. Learn what information is required for the application, including personal details of the decedent and your connection to the estate. Understand the importance of meeting the time limits for filing and find out how to navigate the process without a court hearing, all explained in simple terms. Ensure a smooth probate journey with our expert insights on Section 15-12-301 of the Colorado Probate Code.

What To Do With the Will of Someone Who Has Passed Away in Colorado

By Dan McKenzie • 21 Dec, 2023
What happens to the Will of someone who has passed away in Colorado? Learn about the custodian’s duty to deliver a will promptly and to the correct probate court, ensuring your loved one’s wishes are honored. Discover the importance of acting swiftly and accurately in the probate process to preserve legacies and avoid legal repercussions.
More Posts
Share by: