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 SigelElissa

By

Zack Sigel

Zack Sigel

Managing Editor

Zack Sigel is a former managing editor at Policygenius who oversaw our mortgages, taxes, loans, banking, and investing verticals.

&Elissa Suh

Elissa Suh

Senior Editor & Disability Insurance Expert

Elissa Suh is a disability insurance expert and a former senior editor at Policygenius, where she also covered wills, trusts, and advance planning. Her work has appeared in MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

Updated|6 min read

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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 to their beneficiaries. 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 probate lawyer.

However, most contentions are not successful. You can't just contest a will because you want to — you need to have legal grounds for your claim, like an invalid will, 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.

Key takeaways

  • Wills can be contested during probate if a beneficiary or heir feels like they were improperly excluded, and there is a possibility the will isn't valid

  • Challenging a will is expensive and often unlikely to succeed

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

Who can contest a will?

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, child, or next-of-kin.

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Once you establish that you have legal standing to contest a will, you also need a good reason to challenge the will. You need to demonstrate that something about how the will was written may be illegal; having an invalid will is grounds for a will contest. While the distribution of assets may have been unfair, you won't have a case if the will is ironclad.

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. If the testator is of sound mind when writing the will, they’re 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 their estate.

Learn more about primary beneficiaries and contingent beneficiaries.

The testator was under undue influence

If a relative takes advantage of the testator, by maliciously persuading them to bequeath a larger share of the estate, this is called having “undue influence.” If a will is the result of coercion, it may be challenged in court.

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 should name people to receive property 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.

  • The will should not be forged and fraudulent.

Holographic wills, which are handwritten and may not contain all the necessary legal formalities, may be considered valid in some states 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 modified will should revoke all previous versions of the will. Only the most recent version of the will is valid as long as it has been properly created. One way to modify a will is to add a codicil, but this doesn't not automatically revoke previous versions of the will, and it may be better simply to create a new will to avoid confusion for your heirs.

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 their assets are being distributed per the will. This time is usually referred to as the statute of limitations, and once it has run out, you'll have few options for legal remedy.

File a petition with probate court

To contest a will, submit your claim 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 open a will contest. An estate planning lawyer can file the claim on your behalf, but it isn’t required. Lawyers cost a lot of money, and they could take a large cut of your financial gain. 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 they think it's unwinnable).

Learn more about how much it costs to contest a will.

Prepare for a hearing

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.

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 by way of the estate executor or administrator. Any real property you won in the contest will be transferred 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

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 can 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.

Make it self-proved

You're not required by law to get your will notarized. A notarized will may still be produced under false circumstances, so notarization only gets you so far. However you can add an extra document that "self-proves" the will, meaning that a challenge will be much harder.

Learn more about how to get a self-proving affidavit, which does need to be notarized.

Make your assets payable on death

You can add beneficiaries to your savings and retirement accounts, making them 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.

Learn more about assigning beneficiaries to your assets versus using a will.

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Authors

Managing Editor

Zack Sigel

Managing Editor

Zack Sigel is a former managing editor at Policygenius who oversaw our mortgages, taxes, loans, banking, and investing verticals.

Senior Editor & Disability Insurance Expert

Elissa Suh

Senior Editor & Disability Insurance Expert

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Elissa Suh is a disability insurance expert and a former senior editor at Policygenius, where she also covered wills, trusts, and advance planning. Her work has appeared in MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

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