What Happens When a Last Will and Testament is Contested?
Your Last Will and Testament is the foundation of your estate plan. Everything starts there and eventually comes back to there if not disposed of by another estate planning document such as a living trust. For this reason, your Will should be prepared with care to ensure that all the proverbial “Is” are dotted and “Ts” are crossed.
Even an expertly drafted Last Will and Testament cannot ensure that a Will contest will not be filed; however, it can drastically reduce the chances that the individual who challenges the Will prevails.
Who is entitled to challenge a Last Will and Testament is governed by state law. Often, only beneficiaries, or those mentioned in the Will, and heirs, or those who would inherit under the state’s intestate succession laws, are entitled to file a Will contest.
Just as state law determines who may file, state law also determines what grounds may be used to file. The individual who challenges the Will must state a legal ground on which the challenge is made. Simply being unhappy with the terms of the Will is not grounds for a Will contest. The petitioner must allege that the Will itself is invalid for reasons such as that the testator was not fit mentally at the time the Will was executed, the testator was unduly influenced, or fraud was used in the making of the Will.
Once the Will has been contested, the court will make a determination whether the procedural grounds have been met. If so, the petitioner’s claim that the Will should be invalidated will be litigated as part of the probate process. Although some aspects of the probate process may proceed during this time, nothing significant will happen with regard to the probate of the decedent’s estate until the Will contest has been settled by the court.
A Will contest, even for a modest estate, can take months or even years to conclude. A well drafted Will that was also witnessed and documented, is harder to challenge and may be less prone to the filing of a Will contest. Even if a contest is filed, the chances of its success are slim, with a “No Contest” clause in your Will, an heir risks disinheriting herself and her descendants if she loses the lawsuit. Make sure that your own Last Will and Testament can withstand a Will contest by consulting with your estate planning attorney today.
ABOUT THE AUTHOR: Bradley Anderson
Experienced estate planning attorneys Reno NV of the Anderson Dorn & Rader Ltd offers estate planning and business planning resources to residents of Reno NV.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.