The term “will settlement” refers to the legal procedures used to resolve disputes involving a will. 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” or “decedent.” The will contains instructions for how the testator’s property and assets (“estate”) are to be distributed after the testator’s death. It also specifies to whom what specific assets are to be distributed.

Upon the testator’s death, the will is submitted to a court to be “probated” (i.e, “proven”).  Generally speaking, 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 for the property distribution.

What are Will Settlements?

In an ideal situation, the will’s terms are clear, the judge approves the distribution, and each party who was given a distribution under the will (i.e., beneficiaries) receives the distribution, without any argument.

Often, though, once the testator has died, disagreements regarding the distribution of money or property occur, typically among family members, who either did inherit something from the will, or did not inherit something but believe that they should have. Such disagreements are resolved by a process known as will settlement.

What Types of Will Settlement Procedures Exist?

Will settlements may occur privately, or through court. Private settlement involves negotiation between the executor (the individual tasked with the distribution of the estate) and those individuals who have taken issue with what was, or what was not, distributed to them under the will. Private settlement can consist of these parties directly talking to each other to resolve disagreements.

Private settlement may also involve the use of an intermediary, under a process known as alternative dispute resolution. Alternative dispute resolution (ADR) involves submission of the dispute to an arbitrator or mediator, or other neutral third party. ADR is generally less expensive, and allows for faster dispute resolution, than does disputing the will through court proceedings.

A dissatisfied party can, in lieu of alternative dispute resolution (or if efforts at alternative dispute resolution fail), initiate a will contest in court. Will contests are heard by special judges known as probate judges. These judges resolve contested issues by applying the relevant law so as to best give effect to what the testator’s wishes regarding distribution were.

Will contests, not uncommonly, subject parties to significant court costs and attorneys’ fees. These proceedings may also take months or even years before they are resolved. 

How do Will Contests Work?

In a will contest, a dissatisfied party challenges part or all of the will on specific grounds. These grounds may include (but are not limited to):

  • Whether the testator had testamentary capacity (legal capacity) to create a will;
  • Whether a will, or part of a will, was the product of fraud or forgery;
  • Whether another will exists, that renders the will being disputed outdated or void;
  • Whether the proper formalities were observed during will execution (i.e., whether witnesses were present, whether the testator acknowledged their signature in the witnesses’ presence, etc.); or
  • There is a latent ambiguity in the will, such that introduction of evidence, relevant to intent, of what the testator said before they died (i.e., to friends, to family) may be required.
    • A latent ambiguity is a misdescription of persons or property. The misdescription, however, is not obvious on its face. An example is when a will provides, “I give $1,000 to JJS.” The testator has a relative named JAS, and another named JPS, but none named JJS. 

What is Estate Planning and How Does it Relate to Will Settlement?

Estate planning consists of the actions taken by a testator to prepare for the disposition of their estate. These actions include drafting wills and trusts that specify who will inherit the testator’s estate. An estate includes the entirety of a person’s wealth and assets,  including land, money, insurance, investments, personal and real property, and debts.

Will settlement frequently requires resort to documents created as part of the estate planning process. For example, if a will indicates certain property is to be disposed of by trust, the trust document that was created during estate planning may be examined. This can help to resolve the dispute.  Estate planning documents thus may provide information that is relevant to, and is in some cases necessary for, will settlement.

Do I Need a Lawyer for Help with Will Settlement Issues?

Will settlement can involve complex legal issues related to wills, trusts, estates, and estate planning. The process may seem overwhelming. If you seek to settle a will, or are (or are to become) a party to a will settlement, you should consult with a wills, trusts, and estates attorney. This type of lawyer has knowledge of wills, trusts, and estate planning, and can assist you with will settlement issues.