How Long Do You Have to Contest a Will or Trust?
Not everyone agrees with the will when someone dies. Many times, the beneficiaries will dispute the validity of the will or challenge its instructions. You do have the right to contest a will but only for specific reasons and for a limited time. It’s important to know what these grounds for contesting and restrictions are to ensure your dispute is reviewed by a judge. Read on to learn the answer to, “How long do you have to contest a will?”
Grounds to Contest a Will
You don’t have the legal right to contest a will just because you don’t like what the decedent chose to do with their estate or if you think it is unfair. However, most states allow beneficiaries to contest the will for four reasons. Just realize that the burden of proof is on the one who contests the will, which can be difficult to prove. The court will have the final say about the validity of the will.
It’s also helpful to know that if you can prove the invalidity of any portion of the will, the entire will must be thrown out and the estate proceeds as if no will was left.
Not a Valid Signature
The will must have a valid signature, which means it must follow the state laws on how a will is to be signed. Many states require that the will be signed by the person making up the last will and testament or the testator in the presence of one or two witnesses. They must be in the same room at the same time, each one watching as the others sign.
While you might assume that a will signed in an attorney’s office would meet the legal requirements, it’s actually missed more often than you might think. An invalid signature is the most common reason for a will to be found invalid.
The Capacity of Signing
State law requires that the estate owner must have testamentary capacity to sign a will. This is a fancy legal term that means they must understand the value of the estate and who should logically inherit it. The decedent must understand the legality of signing a will.
Each state has its own laws that determine if the decedent lacked the testamentary capacity to sign. For example, a person may have early signs of dementia, but some states will allow them to sign legal documents because they understand the necessary details even if they are forgetful in other areas. It can be difficult to prove a lack of capacity unless a doctor had visited shortly before the person’s death and could provide testimony to their mental ability.
It’s possible that someone would use undue influence to get a person to sign a will against their own preferences. It must be proved that the person used influence to such an extreme that the testator felt duress and gave into the directions of the person using their influence.
Threats and nagging don’t usually lead to undue influence. Many times, the person contesting the will must prove that the influencer isolated the testator, paid for the will, and even discussed the will with the attorney. This is another challenge that is difficult to prove.
Fraud often accompanies the testamentary capacity to trick someone into signing a will. They may be told that the document is a deed or other paperwork instead of a will. Since most people would read the document before signing, it could be assumed that the testator didn’t have the capacity to sign in the first place.
In this challenge, the testimony of the witnesses is often vital. They may be asked what they thought they were signing. If the witness’ testimony doesn’t align with each other, it may indicate fraud. However, the more likely challenge would be an improper signature.
How Long Do You Have to Contest a Will?
Once a will is signed, the legal document can be contested at any time if any of the interested parties are aware that the document exists. After the person’s death, the will would be entered into probate with the probate court. At this date, the clock starts ticking with the probate process.
State law varies on how much time they allow for the will to be contested. In some states, the statute of limitations may be 120 days or less. Other states, such as Virginia, allow you up to a year after the person dies to contest the will before the statute of limitations runs out.
The longer you go before you contest the will, the more difficult it may be to prove your claim. Witnesses’ memories may fade or they may even pass away or disappear.
Who Can Contest the Will?
Only people who are involved with the will can legally contest it. They must be the beneficiary named in the last will and testament or else be previous heirs who were taken out of the will. They can also be people who would generally inherit under the state law if no will were present but weren’t included in the will. For instance, the decedent may have left their estate to one or two children while leaving the third child out of the will. Because children usually inherit from their parents, they would have a right to contest the will if they have a valid reason.
Contact the Best Probate Attorneys When Challenging a Will
If you decide to contest the will as one of the beneficiaries or an interested party, you can contact a contest attorney who will help you file a claim before the statute of limitations runs out. They know probate law and might even be able to provide you with a little more time to challenge the will if there is a reason for the delay.
You may need to present the previous will to the court if you have access to it or provide evidence you have to prove the reason behind the will contest. Contesting wills isn’t easy to do, and it helps to have legal representation as you move forward. The law firm will have experience with will contests and will be aware of the statute of limitations for your state.
The law firm will help you follow the strict time limits to file a will contest and ensure your reason has solid legal standing. Your lawyer can advise you on how to move forward if you believe the testator didn’t have the mental capacity to sign the will or if they were unduly influenced.
If you are in this situation with a family member, you can seek legal counsel with a free consultation from an experienced law firm. Act quickly because you have a short time period to contest the will’s terms or to determine if you have grounds for contesting. Such cases can delay the probate process for weeks or even months until validity is determined.