When someone we love passes away, our first thoughts are often about the friends and family that have been left behind. We want to comfort each other, protect each other and hopefully start the healing process that will only come with time. But what happens when the will gets in the way?
What happens when the will doesn’t do what it should?
While wills can certainly be challenged, there are a few things to consider before you make such a move. Wills can only be contested for a handful of reasons, for example: incapacity, improper execution, undue coercion and fraud. If your challenge doesn’t fall into one of these categories, you may want to reconsider your protest.
There are also restrictions on who can file such a challenge. Those not named in a previous version of the will, for example and who are not natural heirs (heirs by law) typically have little to no standing, regardless of how flawed the will itself might be.
Also remember that contesting the will may not be a popular decision with the rest of the family and could in fact, cause some rifts that can’t be easily repaired. So, even if you do “win” your challenge in court, you may find that you’ve lost a great deal more for your efforts.
Should you decide to move forward, challenges must be presented in court and decided upon by a judge, so you’ll need an experienced probate attorney at your side to ensure your case is presented in the best light possible. Your attorney can also advise you on whether your challenge is legitimate and well-founded, something you’ll want to verify before making your protest public.
Should you win your challenge and the will is deemed invalid, the most recent and prior version would then be used in its place. In some cases however, prior versions could also be thrown out if the nature of the challenge applied to them all equally. In this case, without a valid will, the deceased would be deemed to have died “intestate,” that is, without a will. In that case the assets would be distributed in accordance with state law.
Author, President and Founding Attorney
Parman & Easterday
Parman & Easterday are members of the American Academy of Estate Planning Attorneys.