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Contested Wills

Who can legally contest a will?

A will can’t be contested by just anyone. Typically, only an “interested party” can challenge a will and only for valid reasons. There are three types of people who can challenge a will:

  • Beneficiaries of a previous will
  • Beneficiaries of a subsequent will
  • Intestate heirs

Someone has standing to challenge a will if they are named in the will (or a previous will) or is not a named beneficiary but who would inherit or fail to inherit under the will if it’s deemed invalid. To make it more simple, 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) may challenge a will when 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 the will.

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.

What if someone objects to the will?

If someone contests a will, it begins an often expensive and time-consuming legal process that may last months or years. During a will contest, the person who contests 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 if the contest is successful or not, although many will contests settle before this happens.

What is the basis for contesting a will?

There are two hurdles for a will to be contested: the individual must have standing to challenge the will and they must have a valid reason or basis for a will contest. In most states, there are just four legal grounds for contesting a will and they are all fairly 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 testamentary capacity for signing the will. This means the decedent did not understand the nature and value of their assets and the legal consequences of signing the will.
  • The testator was under undue influence. 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.
How can a will be legally contested?

In most states, there is a limited time to legally contest a will. 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.

How can I find out if there is a will?

It can be difficult 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 has a duty to submit it to the probate court within days of locating 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 it doesn’t happen for months. This may be with other important documents, in a safe, or in a bank safety deposit box.

How can I avoid probate?

There are many ways to avoid probate. A living trust is one option to hold legal title to certain types of property until the time of death. A trust is a separate legal entity that survives beyond its creator. The property held in a trust bypasses probate and is passed to beneficiaries according to the trust documents.

Certain assets can also be passed to beneficiaries without probate. Bank accounts, for example, can be designated as payable on death (POD) with the credit union or bank to immediately transfer assets to a beneficiary. 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.