Contesting a will: How to contest a will and why

Contesting a will can be a lengthy and expensive process. But if you're owed property when a loved one dies, a will contest may be your best chance to recover it.

Zack Sigel 1600

Zack Sigel

Published June 13, 2019

KEY TAKEAWAYS

  • A last will and testament dictates who gets your property after you die.

  • Wills can be contested during probate if a beneficiary feels like he or she was improperly excluded.

  • Challenging a will is expensive and often unlikely to succeed.

  • Challengers may be able to negotiate a settlement with the estate instead.

A last will and testament is a document stating a deceased person’s wishes after they’re dead. An important part of estate planning, wills contain a legal mandate for how the deceased’s property is to be distributed. This includes naming beneficiaries, the people or organizations you want to inherit your property after you die.

Some beneficiaries will receive specific bequests, and others will receive the residuary estate (remaining assets) divided up as you choose.

If you’re disappointed with your share of the estate, or if you feel you were wrongly excluded from the will, then you may be able to contest the will. Contesting a will means challenging its terms in probate court, usually with the help of a lawyer.

However, most contentions are not successful. If you’re contesting a will, you need to demonstrate that you have standing to do — you can’t just contest a will because you want to. And you may only have standing if you’re named in the will already, were named in a previous will of the decedent, or would have been eligible to inherit property had a will not existed.

In this article:

Who can contest a will?

To have standing to contest a will, you need to demonstrate that something about how the will was written may be illegal. While the distribution of assets may have been unfair, you won’t have standing if the will is ironclad.

The following people — “interested parties” — have standing to contest the will:

  • Beneficiaries already named in the will
  • Beneficiaries named in a previous will, who were written out of the most recent version of will, or whose share of the estate was significantly decreased by the newest will
  • Anyone not named in the will but who, because of the state’s intestacy laws, would be eligible to inherit property if a will didn’t exist. This usually means a spouse or child.

If you do have standing, you also need a good reason to challenge the will. Legal reasons for contesting a will include the following.

The testator was not mentally competent

The testator, the person to whom the last will and testament belongs, must be mentally competent when writing out the will. This prevents malicious relatives from taking advantage of him or her, or what’s called having “undue influence.” If a will is the result of coercion, it may be challenged in court.

If the testator is of sound mind when writing the will, he or she is considered to have testamentary capacity. That means he or she understands the consequences of writing a will and assigning beneficiaries as well as the nature of his or her estate.

Laws were broken when writing the will

A will that is not legally valid can be challenged in court. To be considered valid, the will must follow certain laws:

  • Wills need to be properly signed by two witnesses to be considered valid. (In some states, the witness can’t be a beneficiary.)
  • If the testator made a modification to the will, the new will also needs two witnesses to sign it.
  • The testator has the right to distribute the property named in the will. In community property states, the testator generally isn’t allowed to distribute property acquired during his or her marriage if his or her spouse is still alive.
  • The testator was not tricked into signing the will.

Forged and fraudulent wills are also not valid. Holographic wills, which are handwritten and may not contain all the necessary legal formalities, may be considered valid if the probate judge approves, but they are more vulnerable to contest.

There is a more recent version of the will

When the testator modifies the will, the modification — the codicil — automatically revokes all previous versions of the will. Only the most recent version of the will is valid as long as it has been properly created.

The will is incomplete

If certain legal standards are not met in the will, it may be considered incomplete. That could mean failing to sign the will, leaving blank spaces where beneficiary names should be, or simply omitting text where needed.

How to contest a will

Depending on your state, you may only have a limited amount of time to contest a will. The clock starts ticking after you receive notice of probate, meaning that the deceased has died and his or her assets are being distributed per the will.

You need to file your claim during this time, which is usually referred to as the statute of limitations. Once the statute of limitations has run out, you’ll have few options for legal remedy.

A lawyer will file the claim on your behalf. Lawyers cost a lot of money, and they could take a large cut of your financial gain, amounting to thousands or even tens of thousands of dollars. But an attorney can save you a lot of time and effort as well as make it more likely that you’ll win the contest (or warn you if you they think it’s unwinnable).

Whether you go through an attorney or not, the claim must be submitted to the probate court in the county where the deceased died. A court clerk should be able to point you in the right direction and provide the paperwork you need to file the claim.

Note that contesting a will may require you to undergo many of the same legal proceedings as other civil trials. You may need to sit for a deposition, and you may be required to submit evidence on your behalf during discovery. Be prepared to dig up documents proving your case as well as any other items requesting by the opposing counsel. You may even be asked to give testimony on the stand.

Policygenius Image

Thinking about retirement?

A will is the best way to ensure your property goes to your loved ones after you die.

Settlement

Contesting the will is likely to fail, and it could delay probate for a long time, by months or even years. Because of the delay, some beneficiaries may agree to a settlement with you instead.

The settlement will likely be smaller than the amount you’d get from a successful challenge, but it would save you legal fees and help you avoid a protracted probate process that could fray your relationship with your family.

What happens after the will contest

If you win the will contest, then you take control of the assets you claimed. That could mean, for example, receiving a check for the cash you’re owed, or direct deposit into your bank account.

Any real property you won in the contest will be transferred to you. Make sure your name is on the title to the property and that the amended title has been properly registered with your county. If a house still has a mortgage on it, make sure you assume responsibility for payment and that the lenders are aware that mortgage statements are to come to you.

But if you lose the will challenge, you could be disinherited from other estate property that you’re owed. (See below.) And if the other beneficiaries appeal, prepare for another lengthy and costly trial.

How to prevent your will from being contested

But if you’re the testator, you’ll want to make sure your will can’t be contested. That means following all the legal formalities that remove ambiguities from the will, which may require a lawyer. You could also take the following steps:

Add a no-contest clause

The no-contest clause doesn’t mean no one can challenge the will. But it does mean that anyone who does mount a challenge will be completely disinherited if the challenge fails. This disincentivizes beneficiaries from contesting a will just because they were unhappy with the size of their bequest.

Get it notarized

You’re not required by law to get your will notarized. But doing so “self-proves” the will, meaning that a challenge will be much harder. However, a notarized will may still be produced under false circumstances, so notarization only gets you so far.

Make your assets payable on death

You can add beneficiaries to your savings and retirement accounts, making the accounts payable upon your death. Payable-on-death accounts (also called transferrable-on-death accounts) do not go through probate as long as the beneficiary is still alive, so the beneficiary has a right to them regardless of the will.

Policygenius’ editorial content is not written by a certified financial planner or advisor. It’s intended for informational purposes only and should not be considered legal, financial, or investment advice. Consult a professional to learn what financial products are right for you.

This post contains references to products or services from one or more of Policygenius' advertisers or partners. While these codes earn us a small fee at no additional cost to you, they do not influence editorial content and we only refer products we love.