The term “will settlement” refers to the legal procedures used to resolve disputes involving a will. A will, also called a last will and testament, 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 indicates to whom specific assets are to be distributed.
This is different from a living will. A living will provides instructions to loved ones and doctors regarding what types of treatment an individual desires should they become incapacitated and unable to express their wishes.
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.
If an individual dies intestate, or without a will, their property will be distributed according to state law.
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 often subject parties to significant court costs and attorneys’ fees. These proceedings may also take months or even years before they are resolved.
What Is Probate?
The term probate is the legal process by which the estate of a deceased individual is distributed under court supervision. For example, probate may be used to establish the legal validity of a will document, correctly distribute assets to any beneficiaries named in the will, and to establish a plan for paying off any debts or taxes that are owed by the deceased’s estate.
Generally, the probate process is handled by the probate court. The purpose of probate courts are to oversee matters involving the estate of the decedent, including:
- The probate of wills;
- Estate administration; and
- Guardianships of an estate.
In addition, depending on where an individual lives, their local probate court may have a different title, such as a Chancery Court or a Surrogate Court. Regardless of the name which is used in an individual’s state, that is the court they will be required to appear in when handling issues involved in probate matters.
How Do Will Contests Work?
When a party is contesting a will, the dissatisfied party challenges all or part 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.
If the dispute is eligible to be heard in court, a party may initiate a lawsuit by filing the action with the probate court handling the will. It is important to file an action as soon as a dispute arises.
This is because there is often a statute of limitations, or a time limit, on these types of actions. The statute of limitations may vary by state.
If there is not sufficient clear and convincing evidence to show that the reason for the will contest is valid, a court will most likely not interfere with the original wishes of the decedent. In addition, it is difficult to dispute the terms of a will when it is not possible to consult with the individual who wrote it.
An individual is permitted to file a claim without the assistance of an attorney. However, it is recommended to have one due to the complexities of probate laws as well as the nature of these types of cases.
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 may include writing a will and/or setting up a trust that outlines who will inherit the property in their estate.
An estate includes the entirety of the individual’s assets and wealth, which may include:
- Personal and real property; and
A will settlement typically requires an examination of the documents which were created as a 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.
It is important to note that there are many different types of trusts. An attorney can assist an individual with determining which may be right for them.
This may help to resolve any disputes. Estate planning documents, therefore, may provide information which is relevant to and, in certain cases, necessary for a will settlement.
Estate planning laws may differ from state to state and even from city to city. For instance, estate planning rules in Bakersfield, California may vary compared with those in New York, New York.
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 an estates attorney. This type of lawyer has knowledge of wills, trusts, and estate planning, and can assist you with will settlement issues.