How to contest a will

Do you think you were cheated out of an inheritance? You might be able to challenge the will

Consumer Reports Money Adviser: March 2012

Perhaps you entertained your bachelor Uncle Ernie every holiday for the last decade, but when he died he left most of his estate to your cousin Rufus, whom he hadn't seen in years. You feel cheated and want to contest Ernie's will, but worry that going to court will be costly and time-consuming.

You're right to be concerned, but you might not have to go to court to get some money from your uncle's estate. Plenty of families rumble over estates, but most settle before anyone files a formal challenge in court. "The number of court cases won't tell you the amount of carnage out there," says Martin M. Shenkman, an estate-planning attorney in Paramus, N.J.

To present a credible threat, though, you should understand the circumstances under which a will can be challenged. Here's what you need to know:

Who can contest a will?

You must be what's called an "interested party." You qualify if you're already in the will or would inherit from the decedent by law if he or she had died without one. But you don't have to be a relative to be an interested party. For example, you can contest a friend's or neighbor's will that reduces your inheritance or leaves you out altogether if you know that a previous will gave you more.
State laws protect surviving spouses (and to a lesser extent, children) from disinheritance. In community-property states —Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and, by agreement between spouses, Alaska—you can do what you like in your will with your own half share of the community property and with your separate property. In all other states, there is no rule that property acquired during marriage is owned by both spouses. But to protect spouses from being disinherited, most of those states give a surviving husband or wife the right to claim one-third to one-half of the deceased spouse's estate no matter what his or her will says. In some states, the amount the widow or widower can claim depends on how long the couple were married.

Those are statutory provisions and don't require the surviving spouse to contest the will. But they take effect only if the survivor goes to court and claims his or her share. If he or she doesn't object to receiving less, the will stands as written.

Grounds for a challenge

Children generally don't have the right to inherit from their parents, but there are some exceptions. For example, most states protect children from accidental dis¬inheritance. Those laws usually take effect if a child is born after his mother or father writes a will that leaves property to other children and never revises the document to include the new child.

You can't contest a will simply because you don't like some or all of its provisions. Instead, you must prove that it's invalid for one or more legally recognized reasons. It's a difficult task because the law presumes that a will is valid and accurately reflects the wishes of the person who wrote it.

Incompetence is one reason you can use to try to invalidate a will. In such cases, however, it is irrelevant if your Aunt Augusta finally succumbed to Alzheimer's disease last month. What you must prove is that she was incapacitated when she wrote her will 15 years ago. You'll have to present old medical records or witnesses who will testify that your aunt did not know what she was doing when she created it.

You can also challenge a will if you think its author was susceptible to the undue influence of another person, like a home health aide, for example. You'll have to show that the aide was in a position to persuade your loved one to change his or her will and had the opportunity. In addition, you can argue that a will is invalid because its author revoked it, executed it improperly, or was the victim of fraud or forgery.

What happens next?

Specific procedures vary by state, so it's important to quickly seek the advice of an attorney who has experience in wills and estates. Typically, he or she will first contact the attorney who represents the executor of the estate. You might gain enough leverage to get what you want by threatening to contest the will, because litigation takes time and costs lots of money.

"A typical will contest will cost $10,000 to $50,000, and that's a conservative estimate," says Alexander A. Bove, Jr., an estate-planning attorney in Boston. A fight can easily take one to two years or longer, especially if the case goes to trial. You'll have to decide whether the estate is large enough to justify the potential expense.
While you are pondering whether to start a tussle, consider the emotional toll of an ugly battle that pits family members against each other. You might decide to forgive Uncle Ernie, wish Cousin Rufus well, and move on with your life.

Fighting over non-probate property

Many valuable assets, such as 401(k)s and other retirement plans, life-insurance policies, property in living trusts, and jointly owned bank accounts, aren't passed on through wills. They go to named beneficiaries, trustees, or joint owners, though there are exceptions.

For example, federal and state laws protect surviving spouses from losing retirement accounts to other heirs. Under federal law, a widow or widower has the right to all the money in a deceased spouse's 401(k), 403(b), or Keogh plan, no matter who is named as beneficiary, unless the surviving spouse signed a waiver consenting to the choice of a different beneficiary. Federal law also protects former spouses. Say a man names his wife the beneficiary of his 401(k), pension plan, or employer-sponsored life-insurance policy, and then the couple divorces. If he neglects to change his beneficiary, his ex-wife is still entitled to inherit those assets.

State laws govern IRAs. A married person may name anyone as the beneficiary of his or her traditional or Roth IRA, but the surviving spouse may have the right to claim some of the money depending on state law. If you name your spouse the beneficiary of your IRA or Roth and then divorce but don't change your beneficiary form, in many states your ex won't get the money. It will go to the alternate beneficiary that you named.

To challenge the beneficiary designation of a retirement account or life-insurance policy, as well as the provisions of a living trust, you'll have to file a lawsuit. Such cases are rare, however, probably because they're difficult to win.

You have a better chance of getting your hands on jointly held assets. Assume that your sister is the joint owner of your mother's $100,000 bank account. In her will, Mom divides her probate estate, worth $50,000, evenly between you and your sister. If Sis doesn't offer to split the bank account, you might want to hire a lawyer to write a letter to the bank arguing that the account might belong in your mother's probate estate. Fearing liability, many banks would freeze your sister's access to the account, which would put you in a good position to negotiate for a cut.

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