Just as family conflicts and miscommunications can be a challenge in life, so too can they create difficulties upon death. Read on for practical, expert advice for those who may feel they have been slighted in a will.
Can Anyone Contest a Will for Any Reason?
Ah, families! Let’s say one sibling feels disappointed in the will left by a parent. Is that sufficient reason to legally contest it? No.
Let’s say a distant cousin, not mentioned in the will, wants to contest it. Will that be allowed in probate court? Most likely, not.
Under probate law, as LegalZoom points out, generally only spouses, children or people mentioned in the will, or a previous version of it, are legally able to contest a will. They can do so by notifying the probate court of the perceived problem—this initiates the process of will contest.
It’s important to understand that, most of the time, probate courts accept the validity of wills. LegalZoom cautions that contesting a will does not mean it will be overturned easily—it is a legal document and “generally presumed to be valid by the probate court if it is in the proper format.”
Accordingly, Investopedia cautions:
- Make sure contesting a will is a winnable and financially smart battle—being left out of a will is terrible, but wasting time, money and emotions fighting a losing battle is worse.
- To succeed, you must prove coercion, diminished mental capacity or outright fraud—all difficult to prove, no matter your personal convictions.
Making The Case: Legal Reasons for Contesting a Will
From a legal standpoint, slighted feelings don’t matter. Legally, what matters is how the document was created, signed and witnessed. Examples of legal reasons for contesting a will include: belief that the “testator” was under the undue influence of another at the time of signing; or, that the signature was obtained under false pretenses.
LegalZoom sums up these four legal reasons for contesting a will:
- How the will is signed and witnessed.
- Mental capacity at time of will signing.
- Will fraud.
- Under the influence
If there proves to be valid reason to do so, a probate court could throw out the entire will or codicil (an update made to it after signing), revert to an earlier version of the will, or decide to distribute the assets following the intestacy laws in the state. Another option available to the court is to uphold part of the will and use intestacy laws to distribute remaining assets.
Consider an Estate Bond
Although typically waived among family and friends when a will is prepared, estate bonds can be a helpful way to instill confidence in the administration of the estate in accordance with the will.
Estate bonds, also known as administrator bonds, are a type of fiduciary bond—they guarantee the faithful performance of the executor or administrator of the estate. Sometimes during the process of probate, the court can require a fiduciary bond—even if originally waived.
It is easy to obtain estate or administrator bonds from leading, national provider, Colonial Surety Company. Uniquely, Colonial offers a full line of instant, digital, bonds, including, executor, fiduciary, personal representative and probate, as well as estate or administrator bonds.
Colonial provides all of these fiduciary bonds instantly. Just get a quote online, fill out your information, and enter your payment method. Print or e-file the bond right from your home or office—or anywhere! Obtain your bond here now: Estate or Administrator Bond.
Avoid Costly Mistakes
AARP reports that errors are sometimes made when wills are signed and witnessed—so it’s best to pay careful attention to properly executing these steps:
Not only must you, as the maker of the will, sign it, but two witnesses who were present when you signed must sign it, too. Neither can be a beneficiary. In a majority of states, any gift to a witness-beneficiary will be reduced or even voided.
Of course family members generally also want to avoid letting disagreements over the will go too far. Afterall, as LegalZoom observes:
When a sibling decides to contest a will sparks fly, but when it comes down to brass tacks, the court looks at all of the facts in the case and makes a decision based on what is provable. Most wills are upheld, and most sibling disagreements after a parent’s death cool down with time.
Special Tip for Estate Lawyers: don’t forget to sign up for Colonial’s free Attorney Partnership Account®. This complimentary business service provides attorneys with user-friendly client management dashboards to coordinate, view, complete and e-file the court and fiduciary bonds clients need. Start saving yourself time—and your clients money, right here: Partnership Account for Attorneys.
Founded in 1930, Colonial Surety Company is a direct seller and 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 across the USA.