The process of probate is where a deceased person’s financial file is effectively closed: their remaining assets are used to settle any debts and what’s leftover is given to the beneficiaries. 99% of the time, this process follows through steps in probate court without being challenged. When probate is “contested” it means a family member has come forward to petition that something is not right.
When does this happen?
There are two common pathways to contested probate. The first occurs when an elderly person writes (or changes) their will to accommodate someone other than their children or spouse. Since some elderly people are prone to dementia and/or susceptible to scams, the court will consider evidence that suggests the decedent was not of sound mind, or was otherwise manipulated. The second common scenario is where a relative believes they were somehow shortchanged. In cases like these, the court has specific reasons it will consider.
Valid legal reasons to contest probate:
Another will or trust exists – wills can be revoked and replaced if it can be proven that the second will (or similar document) is legal and more recent.
“Testamentary Capacity” – refers to the deceased’s mental state when creating the document. The decedent’s testamentary capacity can be challenged if there is evidence of senility, dementia, mental illness, or intoxication.
Forgery, Fraud, or Undue Influence – some form of manipulation was at hand. Forged signatures, lying to the testator about what they are signing, and other forms of coercion are all legal reasons for having a will revoked.
The will isn’t legal – each state has their own laws governing what makes a will legal, like required spousal payouts, requirements of witnesses, and countless other restrictions. (For example, half of the states consider handwritten wills illegal.) Errors such as these could lead a court to invalidate, scrap, or amend an existing will.
What about a will with a “No Contest” clause?
Some individuals seek to discourage relatives from challenging their will by adding a “no-contest” clause. These are written to penalize a beneficiary’s inheritance if they contest the will and lose. These types of clauses only apply to named beneficiaries; relatives given nothing in the will can still contest it without penalty. No-contest clauses are not always enforceable, though. A handful of states disregard them altogether.
Why legal representation is crucial
Several possible pitfalls surround contested cases in probate. For one, the executor is usually a family member and bound by very specific rules. Violating them can have far-reaching legal ramifications. Perhaps more importantly: the stakes are high, and there aren’t second chances. A lengthy process in probate court can be expensive and wipe-out sizable portions of the estate. Whether it be preserving the wishes of the deceased, or navigating a complicated family dispute, a licensed, experienced legal professional is the best way to avoid the unnecessary problems during probate court contests.
Whether anticipating a disagreement over a family member’s estate, or hoping to develop a sound plan that protects your own relatives from painful family conflicts, contact the team at the Law Offices of Jeffrey Lohman today.