Most of the time, carrying out a dead person’s last wishes is fairly simple – their assets are divided as the deceased directed in the will, everyone grieves and then moves on, possibly with slightly heavier wallets. Occasionally, though, there will be a challenge to the will that has to be resolved. If you think you need to challenge a will, here’s how to do so by yourself. For help with wisely handling an infusion of cash from an inheritance, consider working with a financial advisor.
What Is a Will?
A will is a legal document that defines how your assets are distributed after your death. If you have minor children, this document also identifies who you want to be their guardian and how they should be cared for.
The contents of a will generally include:
- Who the executor is. This person carries out the provisions of the will.
- Your beneficiaries. Who receives which assets from your estate and when.
- Identifies guardians. The people who will take care of your minor children.
Wills often go through probate, which is the legal process for settling an estate. The rules are different for every state, so check with an attorney or your local county office to learn more. Probate is a public record, which decreases your privacy. Additionally, probate can be expensive and time-consuming, which is why some investors choose to create a more comprehensive estate plan.
Grounds for Contesting a Will
As a beneficiary, if you do not agree with how the assets are being distributed, you may have grounds for contesting the will. In order to do so, you must have a legitimate legal reason to challenge the will. These are a few of the most common arguments:
- Lack of mental capacity. If the person making the will was not “of sound mind,” then they may not understand their decisions. They must be able to understand what they own, who their natural heirs are and what they are giving and to whom.
- Fraud, undue influence or forgery. Some investors are tricked into signing a will, are forced to create a will under duress or have their signature forged.
- Multiple wills. If there are multiple wills, the one that was created last is often the one that the courts will side with. However, wills created at the last minute before death may be contested due to undue influence, lack of mental capacity or other reasons.
- State requirements are not met. Every state has specific requirements of what must be in a will, how it is signed and who the witnesses are. If these elements are missing, then the will may not be valid.
- Location. Some states may not recognize wills created in another state. In general, your will should be created and signed in the state you are a resident.
Who Can Contest a Will?
While you may not agree with a will, in order to contest the will, you must have legal standing to contest it. To contest a will, you must meet one of these requirements:
- A prior will names you a beneficiary.
- The current will names you a beneficiary.
- You are the beneficiary of a newer will made after the one in question.
- You would be an heir if there was no will and intestacy law applied.
How Do You Challenge a Will Without a Lawyer?
To challenge a disputed will, you must first determine if you have legal standing. If you have legal standing, a legal reason for challenging the will must be identified. Then, you have to determine if you’re within the statute of limitations to contest a will in that state.
Next, you’ll file a petition in the state probate court where the estate is under probate. These forms are generally available in person at the probate court or on the state’s website. All of this can be done without representation — just make sure you know what you’re doing.
Your petition alerts the probate court and the estate that you are contesting the will. If your case is not settled, it goes to court where you’ll make your argument about why the will should be changed. The judge decides the outcome of your case.
Because probate attorneys often charge $250 to $750 per hour, some people decide to handle the case themselves. On the other hand, some lawyers agree to contest a will on a contingency fee basis, meaning they get a share of whatever is available after a successful will contest. Even if you decide to pursue the case without an attorney, getting advice from an attorney or having them review your documents can be a wise idea.
How Long Do You Have to Contest a Will?
Once probate starts, there is a limited window that you can contest the will. This is known as a statute of limitations and the time frame varies by state. Generally, you’ll have between 30 days and several months to contest the will. It is important to know that the statute of limitations starts when the will is filed with the probate court, not the date of death.
What Is a No-Contest Clause?
Some people do not want their heirs fighting over their estate. One way, at least theoretically, to limit this fighting or a will contest is by implementing a no-contest clause into the will. This clause disinherits anyone who challenges a will if their challenge fails. In order words, if you don’t win your challenge, you get nothing from the estate.
The Bottom Line
A will is a popular legal document that determines who receives assets from the estate and who takes care of the deceased’s minor children. If there is a problem with the will, you can contest it if you have legal standing and there is a legitimate reason for doing so. Some wills have a clause that forfeits your share if your challenge fails. Because probate attorney fees are so high, some investors choose to contest a will without an attorney. However, this is a complicated scenario and there is a lot at stake, so weigh the decision heavily before proceeding without adequate legal advice.
Tips for Estate Planning
- Many investors want to create a large estate to pass on assets to their heirs. Our investment calculator helps you forecast how big your estate can grow. Simply add in your starting balance, additional contributions, timeframe and rate of return to calculate the potential growth of your money.
- Financial advisors work with estate planning attorneys to maximize the size of your estate and minimize estate taxes. Finding a qualified financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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