Five Tricky Clauses to Consider Including in Your Will

Drafting a will is a foundational step in planning for your future and the well-being of your family. While many people think of a will as a simple document that names beneficiaries, a well-constructed will can contain specific clauses that manage how and when your assets are distributed, protect your beneficiaries, and provide clear instructions for your executor.

The Elder & Disability Law Firm, APC, located in Redlands, California, offers dedicated assistance in estate planning. The firm is recognized for its hands-on approach and for walking clients through every step of the process. Attorney Esther C. Wang can help you create a plan that specifies your wishes and provides for your family.

While a will can often be straightforward, there are also several provisions you can include in your will to better protect your assets and provide for your beneficiaries after your passing. Here are five tricky clauses you should consider including in your will. 

1. No-Contest Clause (In Terrorem Clause) 

A no-contest clause is a provision that penalizes any beneficiary who challenges the validity of the will. If a beneficiary contests the will and loses, they typically will forfeit any inheritance they were set to receive. The goal of this clause is to discourage legal battles among heirs after you have passed away. 

For example, imagine you have three children, but you decide to leave a larger portion of your estate to one child who acted as your primary caregiver. You might worry that the other two children will feel slighted and challenge your will. By including a no-contest clause, you create a strong disincentive for them to do so. If they contest the will, but the court upholds it, they could end up with nothing.

This clause is designed to encourage your beneficiaries to respect your final wishes and avoid costly, emotionally draining litigation. 

California Law Governing No-Contest Clauses 

California has specific laws regarding the enforcement of no-contest clauses. While they are generally enforceable, the law provides some exceptions. Under the California Probate Code, a no-contest clause will not be enforced if a beneficiary challenges the will with "probable cause." This means the beneficiary had a reasonable belief that the challenge was likely to succeed. 

For example, suppose a beneficiary has substantial evidence to suggest the will was created under duress, undue influence, or when the creator lacked mental capacity. In that case, they can contest it without risking their inheritance. This "probable cause" exception strikes a balance between the creator's desire to prevent frivolous lawsuits and a beneficiary's right to challenge a potentially invalid will. Understanding this distinction is key for anyone in California considering this clause. 

2. Spendthrift Clause 

A spendthrift clause can be a powerful tool to provide for beneficiaries who are not good with money or who are vulnerable to creditors. This clause protects a beneficiary's inheritance from their own recklessness and from third parties trying to claim it. Instead of giving the beneficiary a lump sum, the assets are held in a trust managed by a trustee. 

The trustee then distributes funds to the beneficiary over time according to the terms you set. This arrangement prevents the beneficiary from spending their entire inheritance at once. It also shields the assets from creditors, bankruptcy proceedings, and divorce settlements, because the beneficiary does not have direct control over the funds. A spendthrift clause provides a safety net, making certain your assets support your loved one as intended without being squandered or seized. 

3. Survivorship Clause 

What happens if you and your primary beneficiary, such as your spouse, are in a common accident and pass away at the same time or within a short period of each other? A survivorship clause specifies that a beneficiary must survive you by a specific period—typically 30 to 90 days—to inherit from your will. Without a survivorship clause, your assets could pass to your spouse's estate and then be distributed according to their will, not yours. 

This could result in your assets being passed on to unintended heirs. For instance, if your property passed to your spouse for even a few hours before they also passed, their will would then control the ultimate destination of those assets. A survivorship clause prevents this by requiring the beneficiary to outlive you by a set time. If they do not, the assets are distributed to your alternate or contingent beneficiaries, keeping your property within your intended line of succession. 

4. Pet Trust Clause 

For many people, pets are beloved members of the family. You can include a clause in your will that establishes a trust to provide for the care of your pets after your passing. This provision is more than just naming a new owner; it allows you to set aside funds specifically for your pet's needs. 

In this clause, you can name a caretaker for your pet and a trustee to manage the funds. You can leave detailed instructions for their care, covering everything from their diet and medical needs to their favorite toys and daily routines. The funds you allocate can be used for food, veterinary bills, grooming, and other expenses. This gives you confidence that your furry, feathered, or scaled companion will continue to receive the love and care they deserve for the rest of their life. 

5. Digital Assets Clause 

In our modern world, many people have a significant digital footprint. This includes social media accounts, email, online banking, digital photos, and cryptocurrency. A digital assets clause grants your executor the authority to access, manage, distribute, or close these accounts. 

Without this specific authority, your executor may face legal and practical challenges when managing your digital assets. Tech companies have strict privacy policies that can prevent unauthorized access, even by the executor of an estate. By including a digital assets clause, you can provide your executor with the necessary permissions and a list of your important accounts and passwords. This forward-thinking clause simplifies the process of wrapping up your digital affairs and protects your online legacy. 

Estate Planning Attorney Serving Redlands, California 

The Elder & Disability Law Firm, APC, is a hands-on law firm dedicated to helping families preserve their assets. Led by Attorney Esther C. Wang, the firm guides clients through each step of the estate planning process, aiming to create a comprehensive plan for the future.

Many clients, whether planning for themselves or for elderly parents, arrive concerned about what lies ahead. The firm's primary purpose is to provide legal guidance that protects your family, assets, and independence as you age. By preparing for the future and clearly dictating your wishes, you can make things much smoother down the road.

Located in Redlands, California, the firm serves communities in Southern California, including Riverside, Rancho Cucamonga, and Palm Springs. Reach out today to schedule a consultation.