When an individual passes away, the law requires the assets that make up the decedent’s estate to be accounted for and ultimately passed down to the intended beneficiaries or heirs of the estate. Before assets are transferred out of the estate, however, debts of the estate – including gift and estate taxes — must be paid. All of this occurs during the probate process. One of the first steps in the probate process, however, is the authentication of the decedent’s Will if one is submitted to the court. It is at this point that you should contest the Will if you decide to do so.
What Is Involved in a Will Contest?
Because every estate is unique, it is imperative that you discuss your legal options with an experienced probate attorney before making a decision regarding the wisdom of contesting a Will that has been submitted for probate. It may, however, be helpful to get an idea of the factors worth considering when making the decision.
Among the most important factors is whether you have legal grounds on which to base a Will contest. You cannot challenge a Will simply because you are unhappy with the terms of that Will. Instead, you must ultimately prove an acceptable legal ground on which the Will can be declared invalid. In Oklahoma, the following grounds may be used to invalidate a Will:
- That a Will of a later date than the one proved by the decedent, revoking or changing the Will, has been discovered, and is offered; or
- That some jurisdictional fact was wanting in the probate; or
- That the testator was not competent, free from duress, menace, fraud, or undue influence when the Will allowed was made; or
- That the Will was not duly executed and attested.
Do You Really Need to Contest the Will?
If your issue with your husband’s Will is that he left you out of the Will, or tried to disinherit you, pursuing a Will contest is not the solution. Like many states, Oklahoma effectively prevents a spouse from being left out of a Will by allowing the surviving spouse to “elect against the Will.” As a surviving spouse, you can accept the gifts bequeathed to you in your spouse’s Will (or trust) or you can elect against the Will. If you decide to elect against the Will, you are entitled to half of the property acquired by the joint industry of you and your husband during your marriage. Basically, all property acquired during your marriage is joint industry property except (1) that covered by a valid pre-nuptial agreement, and (2) property acquired by gift or inheritance during marriage, which is taken in your name only and is not co-mingled with any other joint industry property. In other words, you are entitled to half of all marital property.
Contact an Oklahoma City Probate Attorney
For additional information, please join us for an upcoming FREE seminar. If you have questions or concerns about contesting your husband’s Will or about choosing to elect against the Will, contact the experienced Oklahoma City probate attorneys at Parman & Easterday by calling 405-843-6100 or 913-385-9400 to schedule your appointment today.
You need to initiate a Will contest within three months from the time the Will was admitted to probate.
If a Will contest is successful, the Will is declared invalid. At that time, the court would look for another valid Will to use to probate the estate. If none exists, the estate will be probated as an intestate estate using the Oklahoma laws of intestate succession to distribute estate assets.
If you are concerned about the terms and/or validity of your husband’s Will, speak to an experienced probate attorney right away to discuss your legal options.