What to know if you plan to contest a will

Consumer Reports News: February 10, 2012 10:38 AM

Do you think you were cheated out of an inheritance? You might be able to challenge the will, but to present a credible threat you should understand the circumstances under which a will can be challenged.

Also know that you may not have to go to court, many families fight over estates, but most settle before anyone files a formal challenge in court. Here’s what you need to know:

Who can contest a will?

  • You must be an “interested party,” which means you’re already in the will or would inherit from the decedent by law if they died without one. You don’t have to be a relative to be an interested party. You can contest a friend’s or neighbor’s will that reduces your inheritance or leaves you out 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 the will says. In some states, the amount the widow or widower can claim depends on how long the couple was married.

    Grounds for a challenge

    • Children generally don’t have the right to inherit from their parents, but there are some exceptions. Most states protect children from accidental dis-inheritance, and such laws usually take effect if a child is born after their parent 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 because you don’t like some or all of its provisions. 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.

    • Incompetence is one reason you can use to try to invalidate a will. In such cases, you must prove that the individual in question was incapacitated when they wrote their will. You’ll have to present medical records or witnesses who will testify to that fact.

    • You can also challenge a will if you think its author was susceptible to the undue influence of another person. You’ll have to show that person was in a position and had the opportunity to persuade your loved one to change their will.

      What happens next?

      • Procedures vary by state, so it’s important to seek the advice of an attorney with experience in wills and estates, who will typically contact the attorney who represents the executor of the estate as their first order of business. 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.

        To see our full report visit How to contest a will, which also has useful information and helpful hints if you find yourself fighting over a non-probate property. The article was first published in the March issue of the Consumer Reports Money Adviser.

Maggie Shader

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