A no-contest clause, also called an in terrorem clause, is a topic I have discussed previously in my blog. Readers may remember that an in terrorem clause is a written sentence in a testamentary instrument (will or trust) that is designed to threaten someone, into refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will or trust that threatens to disinherit a beneficiary if that beneficiary challenges the terms of the will or trust.

The Uniform Probate Code, §2-517 allows for no contest clauses so long as the person challenging the will doesn’t have probable cause to do so. Some states, like Ohio, allow for “living probate” and “ante mortem” probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests.

Florida does not follow the Uniform Probate Code and does not recognize the enforceablility of in terrorem clauses in wills or in trusts. The Florida Probate Code, at section 732.517 provides that “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” (more…)

“Do I need an attorney to assist me with probate administration?”

This is a question I am asked often and the answer, the vast majority of times, is “yes.”  Florida Probate Rule 5.030 provides that “every guardian and every personal representative, unless the personal representative remains the SOLE interested person, shall be represented by an attorney admitted to practice in Florida.”

So very simply, anyone who needs probate or guardianship help, who is not also a licensed lawyer in the State of Florida, must contact a Florida lawyer to assist with the proper administration of the estate.