How to Contest a Will
If you are planning to contest a will, it is important to understand the time limitations under state law for filing a claim against the estate. Any claim to contest a will must be filed prior to the deadlines in the probate code or related statutes of the state where the will is admitted for probate. These deadlines are very short, so you will need to act quickly to preserve your claim.
Before initiating a will contest, you must understand the ramifications of contesting the will. Find out if the decedent’s will contains a no-contest or in-terrorem clause that would cause you to be completely disinherited if you dispute the will. If the will contains such a provision, consult a probate attorney to understand your options.
To contest a will, you must have legal standing. A person without standing cannot challenge the will. To have standing, you must either be an heir, such that you may have inherited property from the deceased under the laws of intestacy if he or she had died without a will, or you must be a devisee named in the decedent’s will.
If you meet the requirement of having standing to contest the will, the next step is to determine if you have a legal basis or grounds to contest the will. Grounds to contest a will may include any of the following: a) the testator lacked competency or capacity to make a will; b) the testator was subject to undue influence or duress; c) the required formalities were not followed when the will was executed; d) the testator omitted a spouse or child from the will; e) forgery or fraud were involved in making the will; or f) the testator revoked the will prior to death. This is not an exhaustive list of the grounds for contesting a will. If you believe you have legal standing and grounds to contest a will, consult a probate attorney about whether you have a legitimate claim against the estate.
If you plan to contest a will, you will be starting litigation. Probate law involves many technicalities. To object to a will or sue the decedent’s estate, you need to hire an attorney to represent you and file your claim. Probate litigation is not something you should attempt without a licensed probate lawyer. Also, be aware of the impact this type of litigation may have on your family and other heirs. Probate litigation can cause long lasting damage to family relationships. It should not be entered into without careful consideration.
How to Challenge a Living Trust
It is extremely difficult to win a living trust contest. When estate property is left by will, it must go through probate which allows an heir or devisee contesting the will to tie up the assets of the estate in a lengthy and costly probate process. The ability of a will contestant to delay the distribution of estate assets through litigation often results in the executor entering a settlement with the will contestant. In the case of a living trust, a settlement is unlikely because property in a living trust does not go through probate. Instead, trust property can quickly be transferred to trust beneficiaries by the trustee upon death of the grantor.
Filing a lawsuit against living trust beneficiaries is more difficult than contesting a will in probate. When contesting a living trust, a litigant must file a lawsuit against each individual trust beneficiary. This is much more complicated than contesting a will in probate. Also, a living trust is a private document so its terms are not publicly available. Unlike the probate of a will, the trustee of a living trust is not required to give notice of the living trust to all heirs of the deceased.
It is also more difficult to find grounds to contest a living trust. When a grantor makes a living trust, he funds the trust during his lifetime by transferring title to property to the living trust. See Trust Transfer Deeds. If the grantor has taken these actions and administered the living trust by managing trust property during his lifetime, it is much more difficult for a contestant to claim the grantor lacked capacity to make the living trust, acted under duress or undue influence, revoked the living trust, did not intend to make the living trust, etc.
If you are considering a lawsuit to contest a living trust, consult an attorney with extensive experience in living trusts and litigation. The chances of success in this type of lawsuit are extremely low. Get an estimate of the total litigation costs involved before you decide to proceed.
Who Pays for a Will Contest?
An heir or devisee that wishes to contest a will must pay his or her own legal fees and costs. The cost of litigating a case in probate is often more than an individual can afford to pay. If the case is not settled in the early stages, the legal fees and costs to contest a will can cost $50,000 to $100,000 or more. An individual bringing a will contest risks not only the cost of his own legal fees, but paying the legal fees and costs of the estate or opposing party. If the court finds the party contesting a will did not have sufficient cause to bring the case or acted in bad faith, the court may order such party to pay the estate’s costs of defending the action.
If the heir or devisee prevails in court on a will contest, the prevailing party is usually entitled to be reimbursed by the estate for his legal fees and costs. However, before bringing a will contest, a person must be prepared for the fact that most will contests fail. Courts presume a testator’s will is valid. Therefore, it is usually very difficult for an heir or devisee to have a will set aside. When consulting an attorney about your case, ask detailed questions about your chances for success and the total amount of fees and costs you may have to pay.
Common Grounds for a Will Contest
The following are common grounds upon which a will contest may be initiated after the death of a person making a will, called the testator:
Testator lacked mental capacity, testamentary competency or testamentary intent to make a will;
Testator failed to execute the will in accordance with state law execution requirements;
Testator omitted a spouse or child from the will or disinherited a spouse or child;
Testator was acting under undue influence or duress at the time of making the will;
Testator entered into a second or subsequent marriage and changed his will;
An heir believes the testator revoked his will prior to death; and
The will admitted for probate may have been forged or executed in a fraudulent manner.