- February 14, 2022
- Posted by: Matthew Luedke
- Category: Wills & Trusts
During the probate process you could encounter a family member trying to contest a will, but luckily not everyone can do so. For example, you can’t challenge your cousin’s will because you believe his estate would be better off in the hands of another relative. You also may not object to a will simply because you feel that you have not received an equitable portion of the real estate or bank account or some particular personal property.
Can You Sue to Challenge a Will in Probate Court?
Per basic probate laws, only “interested persons” can challenge a will, only for valid legal reasons.
The Probate Code classifies “interested persons” as an heir (family members), beneficiaries, creditors, or other party who has a property right or claim against the estate being handled.
A will may be contested based on legal circumstances, such as:
- When the deceased person wrote their will, they were incapacitated.
- The testator may have been a victim of fraud, or someone had excessive power over them.
- Witnesses are insufficient or incorrect.
- The will contains unclear provisions.
- Valid will revision discovered later on.
Who has the authority to contest a will?
Although state laws differ, all state legislation has criteria that must be satisfied before a will challenge may begin. The first requirement is “legally established standing.”
An individual with legal standing to contest a will and seek inheritance is someone who is either:
- Named a beneficiary in the will
- Not a beneficiary but can inherit property/assets if a judge deems the will invalid
The first requirement to contest a will is to prove you are entitled to the assets. You must demonstrate that you were named in the will (or should have been) or show that you would have received anything of value (typically money) if the individual had died without a will.
Beneficiaries can contest a will
Who is a beneficiary of a will, and who is not? Those named in a will are referred to as beneficiaries. This may include surviving spouses, children, grandchildren, other relatives, friends, religious congregations, universities, charities, and even animals. Only beneficiaries have the legal standing to contest a will.
Heirs may contest a will
The most familiar named beneficiaries in a will are heirs. Spouses, children, parents, grandparents, and siblings are considered heirs. Any relatives who may inherit if the decedent died “intestate” (without a will) are known as heirs.
Heirs can contest a will if they believe it was wrongfully excluded or that they received an unfair portion of the inheritance. Because intestate succession would give a piece of the estate to heirs, they have the standing to challenge a will.
A minor cannot challenge a will
Minors are not allowed to contest a will until they reach the age of majority (typically 18 years old). This is because children are unable to start legal actions on their own. A parent or guardian may bring a lawsuit on their behalf.
What kinds of wills cannot be contested?
Any will can be contested as long as you have standing and valid reasons to challenge it. However, it may not be worth the effort involved with challenging a will. For example, some wills include a no-contest clause. The no-contest clause is a provision in a will that says if a beneficiary or heir challenges the document and loses, they will not receive anything. They are entirely disinherited.
In some jurisdictions, no-contest clauses are not observed. If you sue and lose in certain states, you can still inherit what you would have inherited if you had not sued. Unless the person who files the lawsuit has a compelling reason, no-contest clauses are enforced in some states.
What are the drawbacks of contesting a will?
The most fundamental consequence of contesting a will is the expense of going to court. The majority of individuals considering disinheriting someone will select to engage a probate litigation attorney to bring a will contest case before the courts. The cost of a will contest, depending on the size of the inheritance and the intricacy of
However, if the inheritance is considerable, it may be worth the time and money to fight a will in probate court.
Wills that include no-contest clauses
If you are a beneficiary of a will with a no-contest clause, there’s a chance you’ll be disinherited if you lose your case. However, that will be determined by whether your state enforces no-contest clauses.
If you are not a beneficiary of the will and sue for an inheritance, the no-contest clause will not apply to your case because you would have inherited regardless.
Personal implications of contesting a will
There could be personal implications as well. For example, a family member may disagree with your decision to bring a lawsuit. They may have different views regarding the decedent’s (the person who wrote the last will) mental capabilities. Naturally, people and organizations with financial interests at stake will oppose the legal challenge.
Examine your estate litigation case with the help of a Probate Attorney
It’s not always easy to figure out who has the authority or cause to contest a will. An estate planning lawyer can examine a copy of the will and provide legal counsel to protect your financial interests. Get started today by consulting with our local estate planning attorneys by calling 509-328-2150 or visit this page.
Do you believe you may have been wronged in your family will? Check out this resource from Investopedia to learn more.