Challenging a Will After Probate – What Do You Expect to Gain?
If you recently lost a loved one and are beginning the long and complicated probate process, you may now be thinking about challenging the will. You may wonder, “After probate, can a will be contested?” The short answer is “yes.”
Challenging a will after probate isn’t impossible, but it can be complex. You need to be able to answer the question, “What do you expect to gain?” You’ll also need to know if your challenge has merit to move forward and how it can affect your inheritance.
Validating a Will
One of the first steps in probate cases is for the court to validate the last will and testament, which is a legal document. When someone, usually the executor or personal representative, files a petition to open probate, they present the last will and testament as well. The probate court will set a hearing where the will is validated, and the person approved to act as the executor of the estate in a testamentary capacity.
When the court validates the will, they are accepting it as the last wishes of the deceased person. This valid will then acts as a guideline on how the assets of the estate are to be distributed to the heirs. Even after the court accepts the will, you can contest it, and the probate court must review your petition. However, it’s much better to present the correct will before probate begins.
Why Wills are Contested After Probate
Only interested parties or those who have a vested interest in the estate have the legal capacity to contest the probated will. You need to have a legitimate concern as an interested person to contest the will, and you should decide if it’s worth the effort to do so. You may simply be an heir or someone acting in a testamentary capacity and determine that circumstances show that contesting the will is valid.
Some of the reasons wills are challenged after probate
- Multiple wills have been found, and it can’t be determined which is the final will
- A new will has been found or a more recent version of the current will
- The will was forged or the deceased was coerced or unduly influenced into making the will
- Signatures on the will were forged
- State law regarding the surviving spouse or children wasn’t followed
- The testator lacked mental capacity
- The will fails to comply with the state law
- The deceased person didn’t have a legally binding will
After the court has accepted a will, it requires extra work to invalidate it. This can be quite costly and time-consuming.
Consider the Timing
Statutes of limitations exist for how long you have to contest a will. You must meet deadlines for your challenge to be considered. You will need to present a convincing case with relevant evidence. Challenging a will can take a long time, causing months of delays in the probate legal process. You’ll want to make sure you have a valid reason to take this step.
You’ll also want to hire an experienced probate law firm to help with challenging the will. Because the burden of proof is on you, it will take a strong case to support your claims with relevant materials. The attorney can tell you the legal options available to you for this process and ensure you are within the statute of limitations.
Why You Would Contest a Will
While there are numerous ways to contest a will, not all of them are easy to provide or worth the effort. Some reasons for challenging the will are valid and easier to verify.
Forgery
Claiming a will has been forged is easier if the signatures weren’t notarized. The testator’s handwriting must be proved as the person signing the document. You can also claim to find a newer will than what has been accepted by the court. This often happens if the decedent wrote their own will after having already created an earlier will. If both wills are dated, it should be easy enough to prove which is the final will.
Mental capacity
Another reason for challenging a will is based on whether the deceased was mentally competent at the time of creating the will. If the person has been diagnosed with dementia or was taking medications that could alter their mental state or prevent them from having a sound mind, it may be possible to prove that the person didn’t understand what they were doing or would have acted differently in normal circumstances.
Coercion
Undue influence or coercion is more difficult to prove. While these are good reasons to challenge a will, it is harder to find evidence to support the claims. Perhaps someone heard a caregiver making threats or you find emails that show support for either of these tactics.
When the Will Doesn’t Follow State Law
One of the easier ways to prove a will isn’t valid is when it doesn’t follow state law. Most of the time, the court will recognize these discrepancies when the will is presented for validation. However, it may be overlooked, which would give you grounds for challenging it after probate.
Each state has its own probate law that must be followed for the probate process. This includes validating the will. These laws stipulate how many signatures are required as witnesses and whether they must be notarized. Normally, two witnesses are stipulated, but you must check your state’s law for verification.
Some states but not all allow the will to be handwritten. If the will is handwritten in a state where they aren’t allowed, it can be declared invalid. The same can be said about holographic wills. If there are any technical issues with the will, the court can determine it is invalid. In this case, if no other will is presented, probate will follow the state intestacy laws. Intestate succession requires that the state’s probate laws dictate who receives the assets instead of following an estate plan if a will were used.
Obstacles to Challenging a Will After Probate
Even if you have a valid reason for a will contest after probate, you may find several obstacles to deal with. First, you have deadlines based on state probate law. If you wait too long, your claim may not be heard.
Second, the assets may already have been dispersed among the family members and other heirs in the validated will. Once the heirs receive their assets, they have the right to sell, use, or keep them. It can be difficult to get the remaining assets back at this point.
Other beneficiaries will likely be angry at the will contest, especially if they are named in the current will and left out of a prior will. They will probably fight back, which can tie up the case in court for months or even years.
Some will contain what is known as a “no-contest” clause. This means that if you contest the will, you are disinherited. Sometimes the clause isn’t enforceable, depending on the situation. However, you would want to talk to a probate attorney to determine if it could be enforced in your situation.
Moving Forward to Contest the Will
If your situation meets one of the valid reasons to contest a will, you should speak with an experienced probate lawyer who is experienced in probate litigation. Contesting a will is a complicated process and one that needs legal expertise. They will advise you on whether you should move forward with the legal challenge as part of the attorney client relationship and help you provide a strong case to the court.
