A will is an estate planning tool that lets a person choose how their property will be distributed when they pass away. When someone dies, their estate is made up of the real estate and personal belongings they owned. But, if you want to have a say in just how your property gets distributed, you need to create a will that follows the legal requirements. If you don’t have a will, state laws choose everything.
While the exact laws for making a will are different in each state, most states have similar laws that you need to follow. For a will to be legally valid, it usually needs to check these boxes. If you get these items right, it helps protect what you want to happen from family members who might challenge it in court. Courts will look at every single detail when families fight over an estate. The people you’re leaving items to need this document to hold up when it goes through probate court.
First, the will has to be written down on paper. The person making the will (called the “testator”) has to sign it. While it’s not always necessary, you should date the will too. This helps avoid confusion if you’re making more than one will over the years. Most states won’t accept verbal agreements or informal notes as a valid will.
The testator needs to sign the will themselves. Sometimes a person can’t sign their name. When this happens, the law usually lets them make a mark like an X instead. The witnesses who are there when the will is signed can then verify that the testator did sign it.
You also need at least two witnesses to watch you sign the will. These witnesses need to be adults who are competent and who won’t get anything from your estate. In other words, the people who witness your will can’t be named in it or benefit from it in any way. If you pick the wrong witnesses, it can cancel out your entire will.
The person making the will also needs to have what’s called “testamentary capacity.” That means they need to be mentally capable of making a will. In most states, the person needs to be at least 18 years old (or in the military or legally married) and they need to know a few key points, including that they’re creating a will, that this will is going to distribute their property when they die, what property they actually own, and who they’re giving it to.
Further, the laws concerning a will’s validity may also depend on the type of will being created. For example, if the will being created is a holographic will, then the will generally does not need to be witnessed, so long as the will is both written and signed by the testator.
The laws can be different based on which state you live in. Sometimes a person thinks a will wasn’t made legally. When this happens, they may be able to get the will thrown out. Someone usually wants to challenge a will when they think they’re not receiving what they should inherit.
What Does It Mean To Contest A Will?
You need to know that when someone writes a will, the law assumes they were in their right mind and that the will is valid unless someone can prove it isn’t. So, if you want to challenge a will in court, you’re the one who has to prove something is wrong with it. That’s actually quite different from what most people think happens in court. If you believe a will isn’t valid, you’ll need to show that the person who wrote it didn’t have the mental ability to make a will when they signed it or that they didn’t follow the legal steps for making a will.
A will is a legal document that controls what happens to someone’s property, money and belongings after they die. Because there’s usually quite a bit at stake, family members may disagree about what the will actually says or how everything should be divided up. These disagreements are known as will contests. Even small differences in how something is worded can cause big family fights. When someone wants to contest a will, they’re saying the will isn’t valid or that some parts of it shouldn’t count.
When families fight over wills, it can destroy relationships that took years to build. What makes it worse is that these personal family problems become public information that anyone can look up in the probate court records.
When someone contests a will, it usually turns into a legal fight between the people who are named in the will and the people who think they should have been included but weren’t. There are some of the most common reasons people fight over wills, which are listed below.
Family members can’t agree on who should get pieces of property. People argue about how much money each person should receive or if someone should get anything at all. Family members fight over personal items that have sentimental value.
What Are Common Will Contests?
One of the most common legal battles happens when someone gets left out of a will. In most cases, all heirs would get some share of an estate under intestacy laws. But, a will bypasses these laws and distributes the property the way the deceased wanted it distributed. This discrepancy between what people expect and what the will actually says is what causes most inheritance disputes. If you want to leave someone out of your will then you actually need to name that person and explicitly state they’re being left out.
You can also run into will contests and other legal problems when the instructions for passing on property aren’t clear. If you add codicils, or written chances to an existing will, to your will, this may create a legal dispute about if the codicil is valid and if the original will or the codicil should control how the estate gets distributed.
You should keep in mind that you can put a no-contest or anti-contest clause in your will to stop beneficiaries from fighting it. A no-contest clause usually says that if beneficiaries challenge the will in any way they’ll lose whatever inheritance they were supposed to get.
Who May Contest a Will?
As we talked about earlier, some of the most common people to contest a will are the ones who would lose their inheritance if the will turned out to be invalid. People who are named as beneficiaries in the will also have what’s called “standing” to contest a will. Standing just means you have the legal right to challenge the will.
Your legal standing is what decides if you can even start to contest a will. If you don’t have standing, the courts will throw out your case before looking at any evidence about if the will is valid. This basic requirement helps keep estates safe from people who don’t have legitimate reasons to challenge a will while it also makes sure that people with real problems can still be heard.
Different states have their own laws about who has the right standing to contest a will. These differences can be pretty big. That’s why you need to check the local estate laws in the state where the will was made to find out if the person who wants to challenge the will actually has the right to file that challenge. A lawyer can help determine if you have standing.
In some states, distant relatives can challenge wills if they meet certain conditions. Other states only let immediate family members and people named in the will bring challenges. If you don’t understand these laws correctly, then you’ll be pursuing a case that the courts will throw out no matter how much evidence you have or how worried you are about the will.
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How Is a Will Contested? How Can it be Avoided?
Most of the time you can only contest a will after it’s been submitted to the probate court after the person who made the will has passed away. If you want to contest a will, you first need to have standing, which was discussed earlier. Once you have standing, you can usually start the process by filing a lawsuit with the probate court that’s handling the will.
There are reasons why courts need you to have standing. Courts do not want to waste time hearing from people with no stake in the will. If you don’t have standing, the court will throw out your case before you even get to show any evidence.
When you file your lawsuit, you’ll need to include different documents that explain why you’re contesting the will and what legal reasons you have for doing so.
The quality of your evidence is what will make or break your case. You’ll need things like witness statements, medical records, financial papers, or letters and emails that back up what you’re saying. Strong evidence can show that someone was forced to make the will, wasn’t mentally capable of making it, or that someone tricked them when they made it. If your evidence isn’t strong enough, the court will usually throw out your case and you might be paying expensive legal fees.
The probate court will look at everything you submitted before they schedule any hearings. Judges look at each bit of evidence to decide if you have enough of a case to move forward. Most of the time, people who are contesting wills work out an agreement outside of court through negotiations. If your case does go to trial, then you’ll need to prepare extensively for it and it can take a few months to get through the whole legal process.
Each state has different deadlines for when you can contest a will. They usually give you anywhere from a few months to a few years after probate starts. If you miss these deadlines, you usually lose your right to contest the will forever. Some states will give you more time if something unusual happens. That said, courts almost never do this unless you have a very strong reason. Having a lawyer can help you avoid missing these important deadlines.
Do I Need a Lawyer for Help With Contesting a Will?
There are different reasons why someone might contest a will. If you’re someone who’s named in a will that’s being contested or you’re someone who got left out of a will and you think the will isn’t valid for some reason, you should talk to a lawyer who knows about will contests. Most states have time limits for these cases, so you need to remember that you’ll need to act within those deadlines.
If you get legal advice early on, it helps you see what your options are before you spend money on a lawsuit.
A will contest lawyer who has handled these cases before can tell you how to contest a will in your state. They can also help you figure out if you even have the legal right to contest the will. The laws are very different from one state to another. A lawyer with this experience can go to probate court with you when you need them to. If you want to write a will that’s legally strong and less likely to be contested after you’re gone, an estate lawyer helps you write one that holds up. LegalMatch can help you find the right lawyer for your needs.
Probate courts have very strict requirements for how everything needs to be done and people who try to manage these cases on their own usually get tripped up by the requirements. If you miss a deadline or file the wrong paperwork, you could lose your case even if you had valid reasons to contest the will. Judges expect you to have the right documents and to follow the local court laws to the letter. When you have a lawyer representing you, they make sure that your case gets the attention it needs and they protect you from making expensive mistakes with the procedures.
