The first step to making a strong contested wills and/or probate case is to hire an experienced estate lawyer. The initial meeting with the lawyer, also called an attorney, is called the consultation. It is important to take some time to make preparations for this appointment in order to get the most out of the time with an attorney.
It is important for an individual involved in a will contest to be aware of the circumstances that surround the process. Reading this information may cause an individual to remember important information that should be brought to the attention of their attorney.
There are some requirements for a will to be valid. There are also some requirements for contesting a will.
Since wills determine who inherits property when a loved one passes away, there may be conflicts. These conflicts are referred to as will contests. They usually involve the beneficiaries, or recipients, or property. Contesting a will means an individual challenges the authority and/or validity of the will and its provisions.
In many cases, an individual contests a will when they feel cheated out of something the testator intended for them to receive. An individual may perceive the distribution outlined in the will to be unfair.
An individual must have standing to contest a will. In order to have standing, the individual must be a named beneficiary in the will. In addition, an individual who could lose their inheritance under the will should it be deemed invaid has standing to contest the will.
A will may contain an anti-contest clause. This clause provides that any beneficiary who attempts to contest the terms of the will will automatically forfeit any claim they may have to an inheritance under the will. There may be exceptions to this clause, depending on the circumstances that would lead to a will contest, such as duress. Some states, such as Florida and Indiana, do not allow anti-contest clauses. The rules regarding these clauses will vary by state.
Probate is the legal process by which a decedent’s estate is administered under court supervision. Probate may be used for any of the following:
- To establish the legal validity of a will;
- To distribute assets to any beneficiaries named in the will; and
- To establish a plan for paying off any taxes and/or debts owed by the deceased’s estate.
Depending on the jurisdiction, the probate court may be known by another name, such as a Chancery Court or a Surrogate Court. Regardless of the name used, this is the court an individual will appear before regarding probate matters.
What Documentation and Questions Should I Prepare Before Meeting with My Wills, Trusts, and Estates Lawyer?
It is important to gather relevant documents and compile a list of questions prior to a meeting with an attorney. Relevant documents may include:
- A copy of the will itself;
- Any documents supporting the contest claim; and/or
- Any other documents requested by the attorney.
It is important to compile a list of any questions that an individual may have prior to the consultation. This will allow the attorney to address and explain any concerns an individual may have prior to proceeding. Some questions an individual may have can include:
- Do I have standing to contest the will?;
- What are the consequences of contesting the will?;
- How long will a will contest take? and/or
- Any other questions an individual may have.
It is important to note that there is no frivolous question regarding a case. It is the attorney’s job to explain the circumstances and ensure their client understands the issues involved.
What Makes a Contested Wills or Probate Case Strong? What Makes it Weak?
As noted above, the first step to making a strong contested will or probate case is to have the assistance of an attorney. An attorney will review the case prior to filing a contest to ensure the individual has standing as well as meets the proper legal standards to be heard in court.
Once these requirements are met, the attorney will file an action in the probate court. It is essential to file the action as soon as a dispute arises. In every state, there are statutes of limitations, or time limits, that prohibit certain lawsuits once a time period has elapsed.
Will contests are often difficult to prove. That is why the assistance of an attorney is so invaluable. A court will be hesitant to alter the original wishes of a testator. An attorney will be aware of how to present an effective case to the court and what evidence will be required.
It is very difficult to contest a will after the probate process has ended. It may, however, be possible under certain circumstances. Common examples include a forged and/or fraudulent will and/or a testator who lacked testamentary capacity.
Other grounds for contesting a will after probate may include:
- Improper will execution and/or procedure; and
- The estate was not properly administered.
It is important to note that there will likely be a statute of limitations that applies to these claims. These will vary by state.
Once a will contest petition is filed, the probate court will schedule a hearing. The purpose of the hearing is to present the evidence the parties have regarding the will contest.
If the court voids a will based on a petitioner’s argument, they will request any previous drafts and/or copies of the testator’s valid wills. If any of these exist, the court will likely follow the instructions provided in another version of the will.
If no other versions of the will exist, the court will strike the invalidated will and treat the estate as if the individual passed away without leaving a will. In these cases, the decedent’s property will be distributed according to the intestacy laws of the state in which the probate proceeding is being held.
Wills that are poorly written are frequently contested. The best way to avoid a will contest is to use language that is clear and specific. An individual can modify their will as many times as they choose over their lifetime.
What are Some Dos and Don’ts for Contested Wills or Probate Cases?
Some “do’s” for contested wills or probate cases include:
- Do: Hire an attorney. Will contests can be complex. They involve presenting evidence to a specific court and are not easily handled by an individual alone.
- Do: Gather as much evidence as you can to support your case. Will contests can be difficult to prove so the more evidence that can be presented, the better.
- Do: Hire an attorney and make your own will so your family members do not have to involve themselves in a will contest case.
Some “don’ts” for contested wills or probate cases include:
- Don’t: Handle it alone. Especially if the other party has an attorney. Having the assistance of an attorney gives you a great advantage.
- Don’t: Lie about any aspect of the will contest. You may feel like the testator’s wishes were unfair but it is important not to be greedy and make false statements and/or accusations in an attempt to increase your inheritance.
- Don’t: Start a will contest for a frivolous reason. These issues can divide families and cause great conflict.
When Do I Absolutely Need a Lawyer for Wills, Trusts, and Estates Issues?
You absolutely need an estate lawyer for any wills, trusts, and estate issue. These are complex matters that follow specific guidelines. The laws regarding these issues also vary by state. An attorney will be able to advise you on the matters in general as well as the laws in your jurisdiction.
If you must attend probate court, a probate lawyer will help you handle any disputes regarding the distribution of property, a challenge to contents of a will, and/or a situation when there is not enough money available for the estate to pay off its debts and/or taxes.
Will contests may be time consuming and complex. An attorney will determine whether you have the standing to contest a will. If you do, the attorney will assist you in the will contest as well as represent you during any probate court proceedings.