Weighing Value of a ‘No Contest’ Plea

Question: Can you explain what exactly is meant by a “no contest” plea? Without going into the details, my lawyer told me to plead “no contest,” which I did. Since I did, everyone tells me it’s the same as a guilty plea. Can you clarify this for me? --L.S.

Answer: The technical legal name for a no-contest plea is a Latin term, nolo contendere. Your friends are basically correct; it’s nearly the same as a guilty plea, although there are some advantages to using it.

One judge defined the plea to a jury as: “The same or equivalent in the criminal side of the court to a plea of guilty.” The key words there are the criminal side of the court-- the plea may not hurt you in a civil suit.

Here is what the state Penal Code says about it: “The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as a felony, the plea and any admissions required by the court . . . may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”

In other words, a “no contest” plea is most helpful when you might be sued in a civil case for the conduct that constituted a crime of which you were accused. For example, if you enter a plea of no contest to a misdemeanor charge of drunken driving, you will be convicted and face criminal penalties, but assuming that your driving caused an accident and someone was injured, your plea cannot be used against you when you are sued by the injured party. That person may still be able to show that you were drunk, but won’t be able to use your conviction to prove it.

Q: Probate vs. trusts. Probate sees to it that your instructions (in your will) are carried out. What happens if the successor trustee (of your living trust) does not carry out your instructions? Do your heirs have to sue? --J.S.

A: You have put your finger on one of the risks of using a living trust to avoid probate. Probate can be expensive, but at least it has a complex set of rules and procedures and a well-developed body of law designed to protect your estate and make sure the executor of your will follows your instructions properly. Still, there is really very little direct court supervision of the executor, who, of course, can always run off with your estate’s money.

On the other hand, a trust is administered outside of probate. After your death, the successor trustee is charged with carrying out the instructions set forth in the trust document. The trustee does not have to report what he is doing, or has done, to a judge. (But some trusts are drafted to require annual accountings.)

Executing the instructions in a living trust is usually quicker and less complicated than probate--and less expensive--but if there is a problem, you will probably have to file a lawsuit to resolve it.

One advantage of using a will and going through probate is that the executor is often required to post a bond, so if he or she does abscond with your money, you can collect from the insurance company. But many lawyers draft wills that allow the executor to waive the bond requirement, so that protection is not always there.

But before you can challenge whether the instructions in a will or trust have been properly carried out, you need to know what they are. At least with probate, you know what the instructions are, because a will must be filed in a public court record open to all.

A trust is a private matter, which is one reason why some people like them. But if you question whether the trustee is following his instructions correctly, it can be quite frustrating if you can’t even check to be sure by reading the trust document.

“The greatest protection of probate,” lawyer Paul Hoffman says, “is that it’s a public proceeding.”