Contesting A Will: What You Need to Know
If you are considering contesting a Will, there are some questions you should ask. Also, be aware that contesting a Will can cost you a great deal of time and money. It is not a quick or simple process. If you successfully contest a Will, then you completely invalidate the Will of the decedent.
Considering Contesting A Will?
Here are a few you should ask:
Do I have standing?
To have “standing” — this is a legal term — it means that you will be affected personally by what happens with the case. Only someone with legal standing can contest a Will. You must either be a beneficiary named in the deceased person’s Will, or an intestate heir (meaning the person died without having a solid and formal Will in place). If you represent an entity, such as a charity or an investment fund or a bank, then that entity has to have been named as a fiduciary (i.e. an entity given the power to act on behalf of someone else, specifically on behalf of the decedent) or a beneficiary in the deceased person’s Will. Are you in the Will, or are you a direct relative who would be named as a next-of-kin if the Will were invalidated?
Am I within the legal time range to file?
Each state has its own laws when it comes to contesting a Will. For some states, you must contest the Will within a few weeks of the person passing. Other states grant a few years to let people object to the Will. This time limit is in place so that the decedent’s final expenses can be paid off, and property can be transferred to the heirs in a timely manner. The estate must be distributed and then closed, and that has to happen within a reasonable amount of time. You can consult the specific laws of the state in which the person died to determine if you are still within the legal time range to contest.
Do I have grounds to contest?
For contesting a Will, there are four grounds, and your objection must relate to one of these four grounds:
- The Will was fraudulent
- Someone coerced or unduly influenced the deceased person into making a Will
- The deceased person lacked the mental capacity to make a Will and represent themselves legally
- The decedent did not sign the Will with the proper legal formalities
You will want to talk with an attorney versed in probate to determine if your grounds are sufficient to contest the Will. You would not want to spend the money to contest it and then have a judge immediately dismiss your case. The attorneys at Donnellon, Donnellon & Miller can help you determine if your grounds are sufficient.
Was it a do-it-yourself Will?
If the decedent prepared his or her own DIY Will, without working with an estate planning attorney or other estate planning professional, then there is a decent chance that the decedent did not sign or file the Will properly. There is a very specific set of procedures you must follow to make a Will legally enforced, and people trying to do it on their own frequently miss steps in this process, or do it wrong.