A will is a legally binding document, created and signed by an individual for the purpose of distributing their property and assets upon their death. This individual is referred to as the “testator.” The will contains instructions for how the testator’s property and assets are to be distributed after the testator’s death.
Specifically, the will (sometimes referred to as a “Last Will and Testament”) includes important information, including:
- What property in the decedent’s (the individual who has died) estate (that is, the property and assets owned by the testator at the time of death) is to be distributed;
- When assets and property are to be distributed; and
- To whom assets and property are to be distributed.
Individuals often hire estate planning attorneys to draft their wills. One reason for having a lawyer draft the will is to minimize the risk of a will dispute. A will dispute occurs when an individual challenges one or more provisions contained in the will.
Upon the testator’s death, the will may be submitted to a court to be “probated” (i.e, “proven”). The probate process begins with submitting the will to a probate court. To “probate” a will is to distribute the decedent’s property in accordance with the will’s terms. The probate proceeding is the means through which the judge gives the legal approval to the distribution.
The person who submits the will for probate is known as the executor. The will may contain a provision naming a specific person as executor. The executor files a petition to probate the will with the probate court. That provision is accompanied by a “notice of petition” (or notice of probate), which is an announcement that the will has been submitted for probate.
The purpose of the notice is to give individuals who have an interest in the estate notice that the probate process is being started. This typically involves those individuals named as beneficiaries, i.e., people to whom the testator left property in the will.
Not uncommonly, an individual disputes, or challenges, the contents of a will. The contents of a will may be disputed, or challenged, by beneficiaries. The contents of the will may also be disputed by individuals or entities that have not been named as beneficiaries, but who nonetheless believe they are entitled to a portion of decedent’s estate.
Grounds for dispute may exist when (among other circumstances):
- An individual believes the asset or property distribution he or she received in the will was not the distribution (in amount or type) to which they were entitled;
- The place of death is decedent is unclear (the state in which an individual dies may affect beneficiary rights);
- A beneficiary dies during the probate process;
- A beneficiary predeceases (dies before) the testator;
- One or more items comprising the decedent’s property or assets physically does not exist at the time decedent dies. An example of this is when decedent creates a will, and leaves an item of jewelry to a person. The decedent then sells the item, without updating the will to reflect the fact that the jewelry is no longer part of the estate; or
- One or more items of property owned by the decedent at the time of their death are not accounted for in the will.
If a dispute cannot be resolved informally, the dispute is typically resolved during the course of the probate proceeding. While probate proceedings can generally be initiated at any time after the testator’s death, the proceedings themselves may take months, or even years. This may depend upon such factors as the size of the estate, and whether creditors make a claim against the estate.
In the event of a dispute, the role of the probate judge is to apply the relevant law so as to best give effect to what the testator’s wishes regarding distribution were.
A testator may include a so-called “no contest” or a “anti-contest” provision in the will. Such provisions typically provide that if a beneficiary challenges the terms of the will in court, the beneficiary will forfeit what was left to them in the will.
Some states, such as New York, generally give full effect to these provisions. Many other states, however, will not give effect to an anti-contest clause, if the challenge was instituted in good faith or with reasonable cause.
Wills can be complex legal instruments, containing provisions, phrases and instructions that may not be readily comprehended. You may, if you wish to dispute one or more provisions of the will, consult with a wills, trusts, and estates attorney. This type of lawyer is often also known as an estate lawyer or probate lawyer.
The lawyer can assist you by explaining the probate process, and by reading the will and other documents to determine whether grounds exist for a dispute exist. The lawyer can advise you as to what rights and options you have, and can represent you in a probate proceeding.