Contested Wills
1. Is it legal to challenge a Will?
All probate matters are open to the public. All friends and so-called past friends can access the Probate information via Courts or the data providers. Generally, the so-called “interested party” makes an effort to challenge the Will and only legitimate reasons. Here is the variety of parties interested in contesting a will:
- Beneficiaries of a past or outdated Will
- Beneficiaries of succeeding will
- Intestate heirs
Someone has the standing to challenge a will if they are not named in the most current Will (or a previous will) or are not a designated beneficiary. But who would inherit or fail to inherit under the Will if it’s deemed invalid? To simplify, you can only challenge the Will if you were named or should have been, or you can show you would have received something from the estate if the decedent had died intestate (without a will).
Heirs are those who would inherit if the decedent died without a will under the state’s intestate succession laws and generally includes spouses, children, parents, siblings, and grandparents. Heirs (or potential heirs under intestate law) certainly challenge a will as they believe they were left out of the Will or received a disproportionate share. For example, if a Will excluded an adopted child or only left assets to three of four children, the children left out of the Will may have a valid reason to challenge them.
When someone wants to disinherit someone or leave an heir out of the Will, they will typically use a “no contest” clause. However, these clauses are usually not enforceable in most states.
2. Can anyone challenge a Will?
Knowing that court systems are already overwhelmed because of various versions of Covid, do your best to settle the dispute in your family or the sphere of influence. Contesting in courts will only benefit the Attorneys and cause significant delays, be considerate. There is a heavy price to the estate for delaying the probate process. It begins an often expensive and time-consuming legal process that may last months or years if someone contests a will. During a Will contest, the person who challenges the Will must show they have grounds and prove the grounds for contesting a will through testimony and evidence. The probate court will ultimately decide whether the contest is successful, although many conflicts will settle before this happens. Contesting the Will after the fact is more challenging on the part of the competing party
3. The reasons to challenge a Will
There are two hurdles for a will to be contested: the individual must have the standing to challenge the Will and have a valid reason or basis for a will contest. There are just four legal grounds for contesting a will in most states, and most of them are somewhat difficult to prove. A will can be challenged under the basis that:
- The Will was not signed according to state law. This is one of the most common reasons a will is found invalid.
- The testator did not have a testamentary capacity for signing the Will. This means the decedent did not understand their assets’ nature and value and the legal consequences of signing the Will.
- The testator was under undue influence. This could be intentional or unintentional. A will is not valid if the testator faced severe distress, extreme pressure, threats, or other forms of undue influence to sign.
- The Will was procured fraudulently or forged. This means the testator was tricked into signing the Will, or the Will was forged.
4. How can one contest a Will
There is a limited time to contest a will legally in most states. This time limit begins when someone receives the notice of Probate. A claim must be filed with the probate court in the county in which the decedent died to contest a will. Depending on the state, contesting the Will may require a deposition, submitting evidence during a discovery phase, and giving testimony to the court.
Ask for the timeline for Probate to have a better picture of the process.
5. How do I find out if there is a Will?
It could be challenging to determine if a decedent had a will if they did not inform the correct people. Hopefully, the person designated to serve as the executor was informed about the Will and its location. In some cases, family members find the will first. In most states, the person who locates the Will must submit it to the probate court within days of discovering it.
If the executor wasn’t informed of the Will, looking for the attorney who may have drafted the Will is the next step. Old bank statements or knowing the law firm the decedent used can be helpful.
Immediate family members can get permission to look in secure areas like a safety deposit box (without removing contents) to find a will.
Most people who create a will keep it somewhere they think people will find it — even if that’s not the case or doesn’t happen for months. This may be with other vital documents in a safe or bank safety deposit box.
6. Is there a way to avoid Probate?
There are many ways to avoid Probate. A living trust is one option to hold legal title to certain property types until the time of death. A trust is a separate legal entity that survives beyond its creator. According to the trust documents, the property held in a trust bypasses Probate and is passed to beneficiaries.
Certain assets can also be passed to beneficiaries without Probate. For example, Bank accounts can be designated as payable on death (POD) with the credit union or bank to transfer assets to a beneficiary immediately. Likewise, cars and boats can be passed on by designating a beneficiary with a Transfer on Death title. Certain types of real estate ownership also bypass Probate.
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