Although wills can be contested, litigators encourage careful thought before doing so. Will contests take time and money—and can cause lasting damage in family and friend relations. Lawyers advise on the importance of being honest and realistic about the relationship with the deceased—and understanding the process of contesting a will—before proceeding.
What Was Your Relationship—Really?
Litigators suggest that contesting a will should only be undertaken after carefully—and honestly—assessing the relationship with the deceased, as well as the laws, process, and fees involved in probate litigation. Underscoring the importance of evaluating honest relationships, Probate Stars point out:
A main reason that people regret filing a will contest is when they have not been honest with themselves or their attorney about their relationship with the decedent. It is a virtual certainty that your relationship with the decedent will be put under the microscope when you file a will contest challenging your disinheritance. The other side will quickly look for reasonable explanations as to why you were disinherited. So ask yourself:
• When was the last time you saw or spoke to the decedent?
• Did you have a falling out with the decedent?
• If you were so concerned about the decedent’s capacity and ability to care for themselves, what did you do about it during their lifetime?
• Did you ever take decedent to the doctor?
• Did you send the decedent birthday and Christmas cards?
• Did Decedent tell you that you were being cut out of the will?
• Were you in Decedent’s prior estate planning documents?
When a will is created, a family member or close friend is typically designated to administer the estate on behalf of the testator (person who created the will). Generally, this administrator is referred to as an executor and has a fiduciary responsibility to act in the best interest of the estate and beneficiaries. That’s why executor bonds can be reassuring to everyone involved. Sometimes these bonds are requested explicitly during the probate process. Essentially, an executor bond guarantees the faithful performance of the executor in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bond: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even before leaving court. Executor Bond Here.
Testamentary Capacity and Undue Influence?
Lawyers emphasize that it’s important to be realistic about the mental condition of the deceased at the time the will was created. It can’t be assumed, for example, that “old age” or even dementia are automatic justifications for contesting a will. Probate Stars further explain:
The two most common grounds to contest a will are the testator’s lack of testamentary capacity and undue influence. Generally, these grounds are raised in conjunction, meaning you don’t usually contest a will solely on the grounds of undue influence or solely on the ground of lack of testamentary capacity. Generally, you challenge a will on both grounds, the theory being that someone who lacks capacity is more likely to have been unduly influenced than someone who has capacity…If a decedent signed a contested will while in the hospital, one week before death, while on morphine and heavy drugs, you likely have a strong foundation for an incapacity challenge. However, if you are challenging a will done a few years prior to death, you need to make sure that you have an educated idea about the decedent’s capacity at that time, before you file your will contest.
If litigation looms, probate courts are likely to request a fiduciary bond to protect the beneficiaries and estate until the conflicts are resolved. Colonial Surety provides direct, digital fiduciary bonds of all kinds, including administrator, executor, probate, estate and personal representative bonds. These bonds safeguard the interests of the estate and its beneficiaries in accordance with state law. At Colonial, the steps to obtaining these bonds are easy—get a quote online, fill out the information, and enter your payment method. Print or e-file the bond right from anywhere—even while at court. Obtain Bonds for Probate Court Here.
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Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.