Frequently Asked Questions (FAQs)
Navigating the aftermath of a loved one’s death is difficult, and questions about the validity of a will can add another layer of stress and confusion. Here are answers to some of the most frequently asked questions about contesting a will.
Who has the right to contest a will?
Not just anyone can challenge a will. To do so, you must have “standing,” which is the legal right to bring the case. Generally, this is limited to people who have a direct financial interest in the outcome of the case. This typically includes:
- Heirs-at-law: Individuals who would inherit from the estate under state intestacy laws if the will were proven invalid (e.g., a spouse or child who was disinherited).
- Beneficiaries in a prior will: A person who was named as a beneficiary in a previous, valid will but was written out of or given a smaller share in the current will.
In short, you must stand to gain financially if the will you are challenging is thrown out by the court.
How long do I have to contest a will?
The time limit for contesting a will, known as the statute of limitations, is one of the most critical aspects of the process. This deadline varies significantly from state to state. In some states, the window to file a challenge may be as short as 90 days from the date the will is officially entered into probate. This is an extremely short period, which is why it is vital to seek legal counsel immediately if you have any concerns about a will’s validity. If you miss the statutory deadline, you will be permanently barred from bringing a contest, no matter how strong your evidence is.
What happens if a will contest is successful?
If a will is successfully contested and the court declares it invalid, one of two things usually happens. First, if there is a previous, legally valid will, the court will often reinstate that earlier will, and the estate will be distributed according to its terms. Second, if there is no other valid will in existence, the court will declare that the person died “intestate.” In this scenario, the estate’s assets are distributed to heirs according to the state’s specific laws of intestate succession, which prioritize the closest living relatives.
Can a “no-contest” clause prevent me from challenging a will?
Many wills contain what is known as a “no-contest clause” or an “in terrorem” clause. This is a provision stating that if a beneficiary challenges the will and loses, they forfeit any inheritance they were set to receive. These clauses are designed to discourage frivolous lawsuits. However, they are not always enforceable. Many states will not enforce a no-contest clause if the challenger brought the lawsuit in “good faith” and with “probable cause.” This means if you have a legitimate, evidence-based reason to believe the will is invalid, the court may allow your challenge without the risk of you losing your original inheritance if you are unsuccessful. The enforceability of these clauses is a complex legal issue that depends heavily on state law and requires an attorney’s advice.
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