How to Probate An Estate Without a Will 8654240

Can A Will Be Overturned After Probate?

Overturning a will—a process that begins with contesting the will—is a very difficult process. Probate courts make judgements about the validity of wills, and their general practice is to honor the wishes of the deceased unless there is an overwhelming reason not to. 

Most probate cases don’t involve contests to wills, and in those instances where there are contests, they generally occur early in the probate process—prior to the distribution of assets. If contesting a will prior to probate is difficult (and it is), contesting a will after probate is nearly impossible. 

 

Reasons to challenge a will

If your exposure to the concept of will challenges is popular television shows and movies, you might think that someone is out there waiting to contest every will that gets written. But in truth, challenges to wills are relatively rare. And a person can’t challenge a will simply because they don’t like the way assets will be distributed. 

In fact, there are only a few valid reasons to challenge a will: 

  • The will wasn’t signed in accordance with state law 

For instance, most states require that a will be signed in the presence of two witnesses, who must also sign the will. 

  • The deceased lacked capacity

Arguing that the deceased lacked ‘testamentary capacity’ is not simply saying that they had memory loss or confusion but that they did not understand what their assets were or who would inherit them when they signed the will. This often requires a medical diagnosis or other proof that the person signing the will was not of sound mind.

  • The deceased was unduly influenced

If the testator (drafter of the will) was so influenced by someone else that they lost their free will, then a court may agree that they were unduly influenced into changing or signing their will. 

  • The will was secured through fraud

An individual who signed a will thinking that they were in fact signing a medical power of attorney was the victim of fraud, and the will they signed would not be valid. 

  • There is a more recent valid will

The most recent valid will is the only valid will for the purposes of probate. If someone comes forward with a duly signed will dated after the will in front of the court, the earlier will is invalidated. 

Another important note: only people who are named in the will or who would inherit if the existing will were found invalid can make these challenges. 

See: Someone Contested the Will. Now what?

Challenging a will after the will has been probated

Challenging a will almost always involves litigation, and people generally challenge a will as quickly as they can so that no actions are taken—like distributing assets—in reliance on the will that a party wishes to challenge. 

When a will (and the estate that it refers to) goes through the probate process, it must first be proven valid. Any challenges must be made before the court orders the will valid.  

Then any debts or taxes owed by the estate are paid and any remaining assets are distributed to the heirs. Challenging the will after those actions have taken place is particularly difficult because the assets within the estate are no longer there, and the statute of limitations to challenge the will may have passed. 

If the will that had already been acted upon were found to be invalid, the probate court would have to determine an equitable solution, and there’s no rule book for that. 

 

Challenging a will after the estate has closed

When all the debts and taxes have been paid and all the assets have been distributed to the heirs, the executor notifies the court and the probate process is complete. 

However, an estate can be re-opened. These generally involve the discovery of some relevant information after the probate process has been completed. 

For instance, say the executor discovers a bank account owned by the deceased that they weren’t aware existed during the probate process. The executor would be required to transfer that bank account to the estate and distribute assets in compliance with the terms of the will. This isn’t a challenge to the will. It’s simply the re-opening of the estate and distribution of assets based on new information. 

However, a will challenge could occur after the estate closed if, for instance, someone who should have been included in the will didn’t receive notice. If an heir had moved and their notice was sent to the wrong address so they never received their inheritance, they may choose to challenge the distribution of assets under the will. 

Or if the executor learns that the deceased had a child the executor wasn’t aware of and that child was not included in the asset distributions, the executor would be required to contact the court to determine how to resolve the issue.   


If you have questions about challenging a will or if you’re the executor of an estate whose will is being challenged, we can help. Contact us for a free consultation.