A will is a legally binding document used in estate planning, which details how a person wishes for their belongings to be distributed when they die. The person who creates the will is referred to as the testator, while the person who oversees the process of distributing the testator’s estate is referred to as the executor. Those who receive the testator’s property from the executor are referred to as the beneficiaries.
In order for a will to be considered legal and enforceable, there are certain criteria which must be met. Some examples of this criteria include, but may not be limited to:
- The testator must possess testamentary capacity;
- The testator must have reached the age of majority for their state, generally eighteen years old;
- The testator must both sign and date the will; and
- The actual document must be labeled as a will. An example of this would be to title the document, “Last Will and Testament.”
Because the will contains instructions for the testator’s property and assets should be distributed upon their death, the will should also contain the following information:
- A description of the decedent’s property and estate;
- When the property and assets are to be distributed; and
- The name of each beneficiary, and what they are to inherit.
Will disputes generally occur when a beneficiary feels they are being cheated out of what they thought they were entitled to. Disputes also occur when the will does not provide clear instructions, or contains vague language. In legal terms, a will dispute occurs when a person challenges one or more of the provisions contained within the will.
What Must Be Done Before a Will Can Be Disputed?
When the testator dies, their will may be presented to the court to go through the probate process. The actual term “probate” is generally used when discussing issues related to estate distribution, and refers to a set of legal procedures which govern the estate distribution process. Before a will can be disputed, it must be submitted to the court.
Although the process can vary from state to state, the probate process is generally as follows:
- If the will fails to designate an executor, the probate court assigns someone to fill the role;
- The appointed executor begins the process of managing the estate, usually by filing documents with the court in order to schedule and set the date for the probate hearing;
- At the probate hearing, the court will review the will in order to determine whether or not it is valid;
- The executor will ensure that all debts and/or taxes owed by the estate are paid off and settled; and
- Any remaining assets, or items that are included in the will, are distributed to the appropriate beneficiaries.
To summarize, the estate’s executor will file a petition to probate the will in that state’s probate court. This provision is to be accompanied by a notice of petition, or notice of probate, which is essentially an announcement that the testator’s will has been submitted for probate. This notice is intended to provide notice to those with an interest in the estate that the probate process has been initiated. Those with an interest in the estate will generally include those who have been named as beneficiaries to the estate.
What Are the Grounds for Disputing a Will?
It is important to note that in order to dispute a will, the disputing party must actually have grounds to do so. Generally, the disputing party will be a beneficiary to the will. However, the contents may also be disputed individuals or entities that were not named as a beneficiary, but believe that they were entitled to a portion of the testator’s estate.
Some of the more common examples of grounds for disputing a will include, but may not be limited to:
- A person who believes that they asset or property they received through the will’s distribution was not actually what they were entitled to, whether in amount or type;
- The location of the testator’s death is unclear, as the state in which a person dies can affect beneficiary rights;
- A beneficiary dies during the course of the probate process;
- A beneficiary dies before the testator;
- One or more items owned by the testator at the time of their death are not accounted for in the will; and
- One or more items to be distributed to a beneficiary does not physically exist at the time of the testator’s death. An example of this would be when the testator creates their will and leaves a specific piece of jewelry to a specific beneficiary. The testator sells the piece of jewelry but does not update their will to reflect these changes.
How Are Will Disputes Resolved? Can Will Disputes Be Avoided?
Most disputes involving a will can be resolved informally through communication between the disputing party and the executor of the estate. If the dispute cannot be resolved through communication and compromise, it will usually be resolved through the probate process. The probate judge will apply relevant state law in order to best adhere to the testator’s wishes regarding their estate’s distribution.
The best way to avoid disputes related to a will and estate distribution would be to ensure your will is clearly written and updated. The majority of will disputes arise from vague or outdated language, which can be avoided by maintaining current records of what exactly your estate contains and who is to receive what upon your death.
Another way to avoid a dispute over your will would be to add a no contest clause to the will document. This clause may also be referred to as an anti contest provision. These provisions state that if a beneficiary challenges the terms of the will or other estate distribution instructions, the beneficiary will automatically forfeit any claim they may have to the estate.
Such clauses are intended to prevent or at least reduce the likelihood of a beneficiary challenging the contents of the will, and are enforceable in most states. Working with a will dispute attorney can help you determine whether your will document should include a no contest clause, and whether your state will enforce such a clause.
Do I Need a Lawyer for Help with a Will Dispute?
Whether you are drafting your will or are considering disputing a will, you should consult with an experienced local probate attorney before doing so. Because state laws vary so widely in terms of what constitutes an enforceable will, as well as how disputes and probate are handled, it is important to work with a local lawyer so that you receive the most relevant legal advice for your state.
An experienced estate planning attorney can help you draft a legally enforceable will, or update an existing will to reflect your current estate. Once again, it is important to continually update your estate plan, so that your estate is distributed in accordance to your wishes.
For that reason, it is also important to briefly meet with your estate attorney annually to go over your estate and any changes that might have occurred to the estate or probate Code in your state. Finally, if you or your beneficiaries are involved in a will dispute, an attorney can also represent you or them during the probate process.