Who Can Challenge a Will?

It's possible to sue the estate during the probate process. But not everyone can sue the estate. Only certain interested parties can contest a will.

It's possible to sue the estate during the probate process. But not everyone can sue the estate. Only certain interested parties can contest a will.

The Probate Code identifies interested persons as:

  • Heirs (family members)
  • Beneficiaries
  • Creditors
  • Other parties with a property right or claim against the estate

For instance, you can only challenge your cousin's will if you're an interested party. Even if you believe his estate would be better off with someone else, that does not matter. Additionally, you cannot contest a will just because you do not think you received your fair share. This goes for any property, including:

  • Real estate
  • Bank accounts
  • Specific pieces of personal property

Anyone who wants to challenge the distribution of an estate must have legal grounds to do so.

Who Can Contest a Will in Probate Court?

According to basic probate laws, only interested persons may challenge a will, and only for valid legal reasons. Valid legal reasons to contest a will include:

  • Lack of testamentary capacity when the decedent wrote the last will and testament
  • Fraud or someone exerting undue influence over the testator
  • Insufficient or inappropriate witnesses
  • Unclear provisions of the will
  • The existence of a later valid will

Most reasons to challenge a will relate to the validity of a will.

Who Has Standing to Contest a Will?

While laws vary from state to state, all states have requirements that a party must satisfy before initiating a will contest. The first requirement is legal standing. Legal standing refers to the capacity to bring a matter to court for a legal process, including a lawsuit.

The only parties with legal standing to challenge a will and sue for inheritance are those:

  • Named in the will
  • Not a beneficiary but would inherit under the will if a judge deems the will invalid (heir)

Standing is the first requirement a party must overcome to contest a will. You must show that you were named in the will (or should have been). You can also obtain standing by showing that you would have received something of value (typically money) if the person died without a will.

Beneficiaries Can Contest a Will

Who is a beneficiary of a will? Those named in the will. Beneficiaries can include any of the following:

  • A surviving spouse
  • Children
  • Grandchildren
  • Other relatives

But beneficiaries can also include others, such as:

  • Friends
  • Faith communities
  • Universities
  • Charities
  • Pets

Beneficiaries have the standing to challenge a will.

Heirs Can Contest a Will

Heirs are the most commonly named beneficiaries in a will. Heirs are relatives who would inherit even if the decedent had died intestate (without a will). Heirs include:

  • Spouses
  • Children
  • Parents
  • Grandparents
  • Siblings

Heirs can challenge a will if the testator omits them. They can also lodge a will challenge if left with a disproportionate share in the inheritance. Heirs have the standing to challenge a will because they would have received a share of the estate through intestacy laws.

Minors Can Contest a Will

Minors are not legally able to initiate legal proceedings. Thus, minors can only challenge a will once they have reached the age of majority (typically age 18). A parent or guardian may initiate a lawsuit while they are minors.

What Type of Will Cannot Be Contested?

You can contest any will if you have standing and valid reasons to challenge it. However, it may not be worth contesting a will. For example, some wills include a no-contest clause in the legal document. A no-contest clause says that if a beneficiary or an heir challenges a will and loses, they will not inherit. They are disinherited. There are caveats to enforcing no-contest clauses, though.

Not every state enforces no-contest clauses. Consider the following:

  • In some states, if you sue and lose, you can still inherit what you would have inherited if you had not sued.
  • Some states enforce no-contest clauses unless the person bringing the lawsuit has a good reason to sue.

Consult a local probate lawyer to learn how your state probate courts handle no-contest clauses.

No-Contest Clauses in Wills

If you are a beneficiary of a will and there is a no-contest clause, there is a possibility that if you lose your lawsuit, you could be disinherited. But again, it depends upon whether your state enforces no-contest clauses.

If you are not a beneficiary of the will and you sue for an inheritance, the no-contest clause will not affect your case. You would not have inherited property anyway.

Consequences of a Will Contest

The most apparent consequence of contesting a will is the cost of going to court. Most people will hire a probate litigation attorney to initiate a will contest. Whether it is cost-effective to sue typically depends on the estate's size or complexity. If the estate is large, you may be justified in challenging a will in probate court.

Personal Implications of Contesting a Will

There may be personal consequences as well. Loved ones may disagree with your decision to bring a lawsuit. They may have different opinions about the decedent.

Some may believe the individual was of a sound mind. Others may think the decedent had diminished mental capacity when they executed the will. And, of course, people and institutions with their financial interests at stake will likely take issue with the legal challenge.

Time Limits for Challenging a Will

An interested party must be critically aware of the applicable statute of limitations in the probate matter. A statute of limitations is a legal limit that prevents people from initiating legal actions long after relevant information disappears. If a party fails to meet the deadline, they cannot bring the lawsuit.

Concerning a will challenge, a statute of limitations ensures that someone does not try claiming property long after the personal representative distributes the property. Instead, people must challenge a will within a short time.

They must bring challenges while reviewing the evidence, and dividing the property is still easy. State laws vary and can be as short as several months. A local probate attorney can guide you on relevant statutes of limitations.

Have a Probate Attorney Evaluate Your Potential Estate Litigation Case

Sometimes it's difficult to determine who has standing or cause to challenge a will. A local estate planning lawyer can review a copy of the will and provide legal advice to secure your financial interests.

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