If you are planning to contest a will, it is important to understand the time limitations under state law for filing a claim against the estate. Any claim to contest a will must be filed prior to the deadlines in the probate code or related statutes of the state where the will is admitted for probate. See state laws. These deadlines are very short, so you will need to act quickly to preserve your claim.
Before initiating a will contest, you must understand the ramifications of contesting the will. Find out if the decedentís will contains a no-contest clause that would cause you to be completely disinherited if you dispute the will. If the will contains such a provision, consult a probate lawyer to understand your options.To contest a will, you must have legal standing. A person without standing cannot challenge the will. To have standing, you must either be an heir, such that you may have inherited property from the deceased under the laws of intestacy if he or she had died without a will, or you must be a devisee named in decedentís will.If you have standing, the next step is to determine if you have a legal basis to contest the will. Grounds to contest a will may include any of the following: a. the testator lacked competency or capacity to make a will b. the testator was subject to undue influence or duress c. the required formalities were not followed when the will was executed, see fatal errors in execution d. the testator omitted a spouse or child from the will e. forgery or fraud were involved in making the will f. the testator revoked the will prior to death. This is not an exhaustive list of grounds for contesting a will. If you believe you have legal standing and grounds to contest a will, consult a probate attorney about whether you have a legitimate claim. If you plan to contest a will, you will be starting litigation. Probate law involves many technicalities. To object to a will or sue the decedentís estate, you need to hire an attorney to represent you and file your claim. Probate litigation is not something you should attempt without a licensed probate lawyer. Also, be aware of the impact this type of litigation may have on your family and other heirs. Probate litigation can cause long lasting damage to family relationships. It should not be entered into without careful consideration. For more, go to
disinherited by parent.
How to Challenge a Living Trust
It is extremely difficult to win a living trust contest. When estate property is left by will, it must go through probate which allows an heir or devisee contesting the will to tie up estate assets in a lengthy and costly probate process. The ability of a will contestant to delay the distribution of estate assets through litigation often results in the executor entering a settlement with the will contestant. In the case of a living trust, a settlement is unlikely because property in a living trust does not go through probate. Instead, trust property can quickly be transferred to trust beneficiaries by the trustee upon death of the settlor.Filing a lawsuit against living trust beneficiaries is more difficult than contesting a will in probate. When contesting a living trust, a litigant must file a lawsuit against each individual trust beneficiary. This is much more complicated than contesting a will in probate. Also, a living trust is a private document so its terms are not publicly available. Unlike the probate of a will, the trustee of a living trust is not required to give notice of the living trust to all heirs of the deceased.It is also more difficult to find grounds to contest a living trust. When a settlor makes a living trust, he funds the trust during his lifetime by transferring title to property to the living trust. See Trust Transfer Deeds. If the settlor has taken these actions and administered the living trust by managing trust property during his lifetime, it is much more difficult for a contestant to claim the settlor lacked capacity to make the living trust, acted under duress or undue influence, revoked the living trust or did not intend to make the living trust. See
inheritance theft.If you are considering a lawsuit to contest a living trust, consult an attorney with extensive experience in living trusts and litigation. The chances of success in this type of lawsuit are extremely low.
Who Pays for a Will Contest?
An heir or devisee that wishes to contest a will must pay his own legal fees and costs. The cost of litigating a case in probate is often more than an individual can afford. If the case is not settled in the early stages, the cost of contesting a will can be 50,000 to 100,000 dollars or more. One who files a will contest risks not only his own legal fees, but paying the legal fees and costs of the estate or opposing party. If the court finds the party contesting a will did not have sufficient cause to bring the case or acted in bad faith, the court may order such party to pay the estateís costs of defending the action.If the heir or devisee prevails in court, the prevailing party is usually entitled to be reimbursed by the estate for his legal fees and costs. However, before bringing a will contest, be prepared for the fact that most will contests fail. Courts presume a testatorís will is valid. See
wills and trusts. Therefore, it is usually very difficult for an heir or devisee to have a will set aside. When consulting an attorney about your case, ask detailed questions about your chances for success and the total amount of fees and costs you may have to pay.