Can you create debt for someone who unsuccessfully contests will if they're not named in the will?

Asked over 2 years ago - Brooklyn, NY

Like your family have to pay money for unsuccessfully contesting your will and only non-family (friends) are in the will.

Attorney answers (2)

  1. Roman Aminov

    Pro

    Contributor Level 13

    3

    Lawyers agree

    Answered . In NY, absent an agreement waiving their right, the surviving spouse gets an elective share of 1/3 of the estate, so they can not be disinherited completely. As far as creating a debt, I am not aware of any strategy to accomplish this objective. You can disinherit any immediate family members (other than a surviving spouse) and as long as the will is properly executed (preferably under the supervision of an attorney), it should stand. If you want to disincentivize the challenging of your will, you should give something to potential challengers (usually intestacy distributees) and insert an interrorem clause which strips away their bequest if they unsuccessfully challenge your will. I highly advise that you utilize the services of an estate planning attorney to draft this will.

    Sincerely,

    Roman Aminov, Esq.

    Law Offices of Roman Aminov

    147-17 Union Turnpike | Flushing, New York 11367
    P: 347.766.2685 | F: 347.474.7344
    Roman@AminovLaw.com | www.AminovLaw.com

    This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing... more
  2. Michael S. Haber

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . Mr. Aminov gives you good advice. He refers, appropriately, to an in terrorem clause. That is a provision in a will that says that anyone who challenges the will forfeits any bequest left to him or her in the will. Of course, to make use of an in terrorem clause, the person who is expected to possibly challenge the will must be bequeathed at least some small amount of estate assets -- large enough to give the person second thoughts about challenging the will.

    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are... more

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