Being named executor of a will is a high compliment; a final show of confidence from the recently deceased where you are entrusted with honoring their last wishes. In cases with a strong will, the duties can be straightforward and easily executed with little guidance. When someone comes forward to contest the will, however, a relatively simple job becomes significantly more complicated.
If you are executor of a will that is being contested, first verify the threat of a challenge is real by checking these two items:
- The individual must be eligible to contest the will.
Not everyone is eligible. A person can contest a will only if they are a relative or if they were a named beneficiary in a previous will before being cut out in the newer version. Minors cannot contest wills, though their parents or guardians can file a challenge on their behalf.
- The claim to contest the will falls within the allotted time-frame.
The window of opportunity for contesting a will is limited and varies by state. In California, for example, the time-frame to contest a will ends at 120 days after the will has been deemed valid and admitted to probate.
If both of the above statements are true, and an eligible party is contesting a will before the state’s cutoff deadline, then it’s time to obtain legal counsel. Contested wills are complex legal situations with high stakes.
Contact attorneys and witnesses.
The executor needs to contact two attorneys: the one that drafted the will and another to act as defense counsel. They cannot be the same person, though they can be from the same firm. The person that drafted the will is an important witness, especially in cases where the challenge is a claim of undue influence or issues with the deceased’s testamentary capacity (two common reasons for contested wills). They may be called to testify alongside other witnesses, which the defense attorney will oversee.
It is important to find a defense attorney who handles probate cases in the state where the deceased lived at the time of death. Don’t worry; unless you’ve done something illegal, the executor isn’t expected to handle legal expenses out of their own pocket. The cost is taken out of the estate.
The consideration of an out-of-court settlement.
Probate litigation can be expensive for all sides. The individual bringing forth the challenge is spending money on a lawyer while watching the estate they hope to inherit get chipped away by legal costs. Depending on the size of the estate and complexity of the case, the situation could warrant an out-of-court settlement that saves all parties time and money. The defense attorney can help you evaluate potential outcomes to measure if an out-of-court settlement is the best course of action.
Experts can help you fulfill your duties as executor.
Family disputes can be nasty, deeply-rooted, and long-lasting. Disagreements over inheritances are amplified by the heightened emotions of grief and loss. Behaviors might even seem irrational. If you were chosen to act as executor of a will, it is because the deceased believed in your ability to get it right.
The Law Offices of Jeffrey Lohman can help. Our team has the experience and expertise to make sure your appointed role is carried out faithfully and legally. If you are the executor of a will that is being contested, contact our staff for assistance today.