Contested Estates and Wills: Explanation of What You Need to Know
There are many reasons as to why a person may want to contest a will. Perhaps you took care of your grandmother for last decade, both emotionally and financially, yet when she passed away her will left the most of her inheritance to a cousin whom she had not seen in a very long time. This may cause you to feel that you are entitled to more than what she left you, especially when compared to what the cousin is inheriting. To contest an estate or will, you know the process can be time-consuming, so you have much worry in regards to taking the matter to court. Fortunately, though, you may find that you don’t have to go to court at all to contest the will or estate. There have been many families who have contested wills without ever having to file a formal challenge to the courts.
To present a contested estate case that is credible, it is important to be aware of the circumstances in which a will can be challenged. Here’s a close look at what you need to know:
When Can a Person Contest a Will?
To contest a will, you must first meet the grounds in which you are considered an “interested party.” To qualify, you will need to be already in the will. Another way to qualify as an “interested party” is to be a person who would inherit from the deceased person had he or she died without anyone deemed to inherit. Please note that you do not have to be a relative to be qualified as an “interested party.”
These states have laws that make sure surviving spouses are entitled to half the property acquired during a marriage; however, if the deceased spouse had personal property (not acquired during the marriage), it can be willed as the person wants without the surviving spouse having any entitlement to it. In all other states, there is no law that mandates a surviving spouse is entitled to half of the property acquired during marriage. Don’t let this discourage you, though, because most states still rule in favor of the surviving spouse being able to claim entitlement to at least one-third of the property, including both the property acquired during the marriage and any personal property. In some estate contests, these states will allow for the surviving spouse to claim up to one-half of the property.
The statutory provisions mentioned above do not require a surviving spouse to file a claim and contest a will. However, it does require the person to go to court and claim the share he or she is entitled to. If no objection is made to the original will, then the will stays as is.
If there are certain provisions in a will that you don’t like, this does not necessarily mean you have the grounds to challenge it. Instead, you will need to prove the invalidity that it has, which may include one or more reasons. For some wills, this can be difficult to accomplish because the law does state that a will needs to be kept to its originality as much as possible in order to preserve the wishes of the person who had it created.
For a person who is contesting a will based on a reason of incompetence, it must be proven that the person who had the will created was incompetent at the time the will was drawn up. This means if your aunt has dementia when she dies but did not at the time the will was created, then a reason of incompetence cannot be used to contest the will. In order to use incompetence as a reason for contesting a will, you will need to provide a large number of medical records, and in some cases, witnesses will be needed to verify incompetence.
The exact procedures that you will have to go through to contest a will will depend on the state the will was created in. The best way to go about contesting a will is to contact a qualified and experienced attorney. This attorney can contact the executor of the estate, and if you have any leverage, you may be able to have the will amended without having to take it to court. Contesting a will costs money and time, and if the executor believes you will win, he or she will not want the case to go to court. If the case goes to trial, it may take anywhere from one to two years before it has been settled. With this in mind, it is imperative that you have patience if you contest a will through the courts.