What happens if a will is contested?
The death of a loved one is one of the most stressful and emotional times in life. And when you add family conflict to this mix of emotions, the results can be disastrous.
If a will is contested, it only adds fuel to the fire. But contrary to the plethora of soap opera plots which detail this kind of thing, a will contest is actually pretty rare — and it’s even rarer that people succeed in contesting a will.
Still, anyone facing a potential will contest also faces the possibility of losing a lot of money and time fighting the case.
Here's what to do if you find yourself in the difficult position of a will contest.
Why would someone contest a will?
The main thing that you need to know about wills and probate contests is that there needs to be a legal reason to do so. Emotional reasons — such as someone feeling that asset distribution is generally “unfair” — are not legal grounds for a will to be contested.
The main reasons why people contest wills:
- They believe that they are getting less than what they are entitled to.
- They believe that another person listed in the will is getting more than they are entitled to, and thus contest the will in protest of that person receiving certain assets.
- The will is thought to be legally invalid due to a forged signature or a person signing when they are “not of sound mind.”
The first or second instance may look like a family member appearing “out of nowhere” to make a claim just after a person dies. The third might happen after, for instance, a relationship with an elderly party begins just before that person's death and then suddenly that new person is in the will.
What happens if a will is contested and the court finds a valid legal reason?
The probate judge will proceed with a will contest hearing and determine the will’s validity. This typically extends the probate process, costing all parties more time and money.
See more: Can someone challenge a will?
Can a valid will be contested?
The short answer is yes. A valid will can be contested.
But the contest is simply the challenge someone makes to the validity of the will. The court then determines whether the will is valid or not based on the evidence available.
Let’s talk about what makes a will valid.
A will is deemed valid when the signee (testator) was in their full mental capacity, the signature is original or is signed by a valid Power of Attorney, and the witnesses’ signatures are accurate and valid. (Most states require two witnesses.)
If the will is not signed or the required number of witnesses did not sign, the will will not be valid. If there is a more recent valid will, it supersedes any prior versions of the will.
So when a will is contested, the party contesting must show one of these things:
- There is a problem with the signature or a witness signature — for instance, if it is forged or otherwise fraudulent.
- The person who signed the will was not of “sound mind” and may have erred in their decision or not been able to read it properly.
A will can’t be contested by just anyone. Wills may only be challenged by someone who has officially been:
- Named in the current will
- Named in a previous will
- Named in the codicil (a supplementary part of a will)
- Next of kin, and would be an heir if there was no will
What to do if a will is contested
If you’re the executor when the will is contested, you’re in a tough position — there’s no way around it. Going through a will contest isn’t fun for anyone.
But just because the will is contested doesn’t mean it isn’t valid. And there are people that can help you through the process.
A probate attorney can represent you before the court to prove the validity of the will. A Last Will and Testament is a legal document, which means a valid will supersedes any preferences of family or other parties who may want to contest it.
If the court finds that the will is invalid, the probate judge will make a determination about inheritance. The judge might reinstate a previous version of the will or rely on the law of intestate succession, which controls inheritance when someone dies without a will.
You can’t know for sure in advance how a court will decide, so the most important answer for what happens if a will is contested is this: you get help.
If you’re serving as executor and the will is contested, you seek out assistance from people who deal with these situations. At EZ-Probate, our attorney plans can provide you affordable access to an attorney.
Schedule a free consultation with our expert team and we’ll help guide you toward the best plan for your case.