The term “probate” refers to the legal process in which a deceased individual’s estate is taken care of under the supervision of a court. For instance, probate can be used to establish the legal validity of a will document, to correctly distribute assets to any beneficiaries named in the will, and to establish a plan for paying off any taxes or debts owed by the deceased’s estate.
In general, the probate process is typically handled by what is known as the “probate court.” Thus, it follows that the purpose of a probate court is to oversee matters involving the deceased’s estate, such as the probate of wills, estate administration, and guardianships of an estate.
Also, depending on where you live, your local probate court may go by another name, such as a Chancery Court or a Surrogate Court. Regardless of which name is used in your state, it is the court you will have to attend if you are dealing with issues that involve probate matters.
How Do You Contest a Will?
A will is the legal document that a person may create to express how they want their property distributed and who they want that property distributed to after they are deceased. In order to contest the contents of a will, both the party and the reason for contesting the will must meet the proper legal standards to be heard in court.
If both the reason and party are legally eligible to be heard, then the party can initiate a lawsuit by filing an action with the probate court. It is important to file as soon as a dispute arises. The reason for this is because there is usually a time limit (i.e., a statute of limitations) in every state that prohibits lawsuits concerning the will once this period has lapsed.
Contesting a will is often a challenging process. If there is not enough clear and convincing evidence to show that the reason for contesting the will is valid, then the court will most likely not interfere with the deceased’s original wishes. Also, it is hard to dispute the terms of the will when it is no longer possible to ask the person who wrote it.
Lastly, although a person can file a claim without the help of an attorney, it is generally recommended to retain one given the difficulty of probate laws and the nature of such cases.
Can You Contest a Will Before Death?
In general, it is usually not possible to contest a will before the testator has died. The reason for this is because wills are meant to take effect after their death, so right now the will is just simply future instructions that cannot be acted upon yet. Also, if there seems to be an issue that could eventually turn into a dispute, the testator has time during their life to re-draft, amend, or change the contents of their will.
There are several states (i.e., Ohio, Alaska, North Dakota, and Arkansas), however, that permit “ante-mortem” probate or “before death” probate. The probate laws in these states allow a testator to seek court approval regarding the validity of their will. The laws also permit intended beneficiaries of the will to become parties to the will contest dispute. This type of probate can help prevent future will contests from occurring after the testator is deceased.
Therefore, if a person lives in one of these four states and is either the testator or intended beneficiary of a will, then they will be able to contest it before the testator dies. On the other hand, if the person lives in a state where the law clearly states that no one can contest the will before the death of the testator has occurred (e.g., Florida), then they will not be able to challenge it until that time has come.
Can You Contest a Will After Probate?
As discussed above, wills generally need to be contested before the probate process has begun and prior to the lapse of the statute of limitations. Otherwise, litigation over distribution of property or other will disputes could go on indefinitely, making it impossible to pay the rightful beneficiaries or creditors owed, and expending what is left of the resources of an estate.
That having been said, while it is very difficult to contest a will after the formal probate process has ended, it is still possible to do so if certain circumstances are present.
For example, a party may request to contest a will after probate in cases where the will has been forged or is fraudulent. Another common scenario is when a party believes that the testator lacked testamentary capacity when drafting and signing the will document.
Some other grounds for contesting a will after probate include:
- Improper will execution or procedure; and
- The estate has not been properly administered.
Additionally, it is important to note that even if the above scenarios exist, the party contesting the will on those grounds must still abide by the statute of limitations for after probate procedures. Also, the general time frame and rules governing these types of procedures will vary depending on the laws of a state.
Ultimately, a party should strive to contest a will before the probate process has begun and definitely before the statute of limitations has passed. This will help them to avoid the difficult process of trying to contest a will after probate has ended.
What Happens After a Will is Contested?
After someone files a petition to contest a will, the probate court selects a date to schedule a hearing. While awaiting the hearing, the petitioner should collect as much evidence as possible to demonstrate why they have a valid argument to contest the will.
As mentioned, a person should generally only file a petition if they have standing and have a legally valid reason to contest the will. They should also check that the will does not contain a “no-contest” clause.
During the hearing, the court will review any of the evidence that the petitioner has gathered as well as the will instrument itself and any evidence that the estate has to offer.
If the court finds that the will is void based on the petitioner’s argument, then they will request to see any previous drafts or surviving copies of the testator’s valid wills. If one of those documents exists, then the court will move forward with the testator’s wishes that were expressed in the other versions of the will.
On the other hand, if there are no other wills in existence and the petitioner’s argument is valid, then the court will strike the will being contested and treat the testator’s estate as if they died without making a will. Thus, the contents will be distributed according to the intestacy laws of the state in which the probate proceeding is being held.
Can You Avoid Probate Court?
Generally speaking, most people would prefer to avoid the probate process because it is often time-consuming, can be expensive, and does not allow for any privacy since probate hearings are matters of public record.
One way to avoid having to go to probate court is by creating a living trust. A living trust is one that is formed when the owner of the property and/or assets is still alive. The property owner will then appoint a trustee to oversee the trust. In the event of the owner’s death, the trustee will also become responsible for distributing the contents of the trust to its assigned beneficiaries.
In most instances, having a living trust will negate the need of having to attend probate court hearings since the trustee will be able to manage the entire process themselves by completing some simple paperwork.
Another way to avoid probate is by having a life insurance policy or bank accounts that are payable upon death. In either case, the holder of the policy or account owner can name specific beneficiaries to receive the funds immediately after they pass away. These two methods are often used to prevent the process of probate.
One last way to avoid probate is by setting up a joint tenancy with a right of survivorship. A joint tenancy is a type of estate that gives the parties an equal interest in the property. In such a scenario, if one of the parties passes away and the other is still alive, then they will automatically become the sole owner of that property due to the right of survivorship.
However, it is important to check local laws regarding this kind of estate since they are usually different for every state.
Do I Need a Lawyer for Probate?
Not every situation will require the help of a lawyer. For example, if the assets or property are held in a living trust, can be transferred immediately due to life insurance policies and payable upon death bank accounts, or are gifts for minors, then it may be possible to avoid the probate process altogether. This means that a probate lawyer will generally not be necessary.
On the other hand, you may need to retain a probate lawyer if the situation requires you to attend probate court, such as if there are any disputes over the distribution of property, if a party is challenging the contents of a will, and when there is not enough money available for the estate to pay off its debts or taxes. In such instances, you should contact a probate lawyer for further assistance.