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Here's what you need to know about contesting a will.

When someone passes away, their estate may have to go through the probate process. If they left a will, that document can be legally contested in probate court. There are several reasons why a will may be challenged. Understanding how the process works for contesting a will is important if you’ve been named as a beneficiary of someone’s estate or you’re concerned that your own will may someday become a subject of disagreement.

What Is Contesting a Will?

Contesting a will simply means that you formally object to the terms and validity of the will. Any interested party can contest a will. The definition of interested party is fairly broad. It means any person or business who could stand to gain (or lose) something if the will is successfully proven to be invalid.

That includes people who may or may not be named in the will, as well as people who can inherit from you according to the inheritance laws in your state. Generally, interested persons may include:

  • Children and/or grandchildren
  • Spouses
  • Siblings
  • Parents
  • Aunts and uncles
  • Business partners
  • Anyone named as your heir or beneficiary, including friends, non-blood relations or charitable organizations you pledge to leave money to

In the case of children, minors usually can’t contest the terms of a will until they’re legally adults. But an executor or guardian could challenge a will’s validity on their behalf if they’re underage.

Reasons for Contesting a Will

Here's what you need to know about contesting a will.

There are a number of reasons why a will may be legally contested during the probate process. Some of the most common grounds for challenging a will include:

  • Questions about the mental state of the willmaker
  • Claims of undue influence
  • Suspected fraud or forgery
  • Improper preparation or execution

Every state has different guidelines with regard to all of the things mentioned above. But generally, for a will to be considered legally valid, it must be:

  • Drafted by someone who is of legal adult age and of sound mind (that means they’re mentally competent to create a legal will)
  • Free of any outside interference or manipulation from someone who takes a financial interest in the will
  • Drafted in accordance with the willmaker’s state laws regarding wills
  • Properly signed, witnessed and recorded or notarized if required by state law

In other words, someone who’s mentally ill or incapacitated wouldn’t meet the legal standard to create a will, nor would someone who was forced into it. A will that isn’t signed and witnessed could also be open to challenge, as could a holographic or handwritten will.

Steps to Contesting a Will in Probate Court

Probate is a legal process that begins after someone passes away. It’s handled by the probate court.

If someone names an executor in their will, this person is responsible for taking an inventory of all the deceased person’s assets and debts. They’re also responsible for notifying anyone named in the will that it exists, liquidating assets to pay off the estate’s debts if there are any and then handling the final distribution of property or assets to the will’s beneficiaries.

Step 1: Do Your Research

The first step in challenging a will is making sure you have grounds to do so. To do that, you may need to:

  • Review the laws for contesting a will in your state
  • Determine if your reason for wanting to challenge the will is covered by state probate law
  • Learn how long after someone’s death you have to raise an objection to a will

Step 2: File a Petition

Once that’s done, the next step is taking it up with the probate court. To contest a will during probate, you’d need to file a petition to challenge the will in your probate court. This is something you could do yourself, although you may want to hire an estate planning attorney to handle it for you if there is a substantial amount of assets at stake or other people are also challenging the will.

Step 3: Gather Evidence

Once you’ve formally filed a petition to contest the will, the probate court will set a date to hear your case. During the time in between, you should be working on gathering evidence to support your claim that the will isn’t valid. The kind of evidence that would be helpful to your case depends largely on why you’re challenging the will in the first place.

For example, say you’re challenging your parents’ will because you think their caretaker manipulated them into leaving them a large amount of money. You’d need proof that the caretaker had either coerced the will or had established a pattern of financial abuse of their accounts that could suggest the will was made under duress. In that kind of scenario, something like bank statements from your parents’ account showing large transfers to the caretaker’s account could go into your evidence file.

Proving your case also means going beyond documentation and finding witnesses who can support your claim. Going back to the caretaker example, you might be able to offer testimony from a neighbor or a delivery person who saw or heard them attempting to manipulate your parents into leaving them money in their will.

The more valid evidence you can gather, the stronger your case may be. Most importantly if you’re contesting a will, take note of your court date or dates if there are multiple hearings scheduled. Be ready to appear and if for some reason you can’t make it on the scheduled day, ask your attorney to have the case continued so you don’t miss your chance to press your claim.

Watch Out for No-Contest Clauses

Here's what you need to know about contesting a will.

A no-contest clause could make contesting a will more difficult. Essentially, this kind of clause can be added to a will to specify that anyone who seeks to challenge or void the will can lose their interest in the estate.

This can stop will contests dead in their tracks. If the person challenging the will can’t prove it’s invalid, they would lose anything they would have inherited. The exception to the rule is if someone were cut out of a will completely. If they were to take their case to probate court and prove the will is invalid, they’d then be entitled to whatever their state inheritance laws dictate they get from the estate.

The Bottom Line

Challenging a will can be both time-consuming and expensive if you have to hire an attorney. Even more, the case could drag on for months or years. Before contesting a will, decide whether it’s worth your time and money. And be aware of any snags, such as no-contest clauses, that could throw an obstacle in your path.

Estate Planning Tips

  • You can minimize the chances of your own will being challenged after you pass away by working with an estate planning attorney to draft one. Your attorney can go over the state inheritance and will laws to make sure the document you create is legal and as immune from challenge as possible.
  • Consider whether a trust should be part of your estate plan, along with a will. Assets transferred to a trust aren’t subject to the probate process. A financial advisor can offer advice on whether a trust is right for you and which assets you might want to hold in the trust. Finding the right financial advisor that fits your needs doesn’t have to be hard. SmartAsset’s free tool matches you with financial advisors in your area in five minutes. If you’re ready to be matched with local advisors that will help you achieve your financial goals, get started now.

Photo credit: ©iStock.com/William_Potter, ©iStock.com/Pattanaphong Khuankaew, ©iStock.com/vgajic

Rebecca Lake Rebecca Lake is a retirement, investing and estate planning expert who has been writing about personal finance for a decade. Her expertise in the finance niche also extends to home buying, credit cards, banking and small business. She's worked directly with several major financial and insurance brands, including Citibank, Discover and AIG and her writing has appeared online at U.S. News and World Report, CreditCards.com and Investopedia. Rebecca is a graduate of the University of South Carolina and she also attended Charleston Southern University as a graduate student. Originally from central Virginia, she now lives on the North Carolina coast along with her two children.
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