You can contest a will if you feel that there’s a mistake somewhere, but how do you start? And most importantly, how do you win a will contest? We have explained the legal requirements for contesting a will in this guide. And if you feel you don’t need a lawyer to contest a will in Texas or Florida, we’ll show you how.
What Is a Will?
A will is a legal document that specifies how your assets will be allocated upon your death. If you have small children, this contract specifies who will be their guardian and how they will be cared for.
Wills are frequently subjected to probate, which is the legal process for settling an estate. The restrictions vary by state, so consult an attorney or your local county office to learn more. Probate is a public record, reducing your privacy. Furthermore, probate can be costly and time-consuming, which is why some investors choose a more comprehensive estate plan.
Legal Grounds To Contest A Will and Win
If you disagree with how the assets are allocated as a beneficiary, you may have grounds to contest the will. You must have legitimate legal grounds to contest the will in order to win. These legal grounds include:
- Inadequate mental capacity. If the maker of the will was not “of sound mind,” they might not understand their decisions. They must comprehend what they own, who their natural heirs are, and what and to whom they are donating.
- Fraud, undue influence, or forgeries: These are all examples of unethical behavior. Some investors are duped into signing a will, are coerced into creating a will, or have their signature forged.
- Multiple wills. If there are many wills, the one created most recently is usually the one that the courts will follow. Wills made at the last moment before death, on the other hand, maybe challenged due to undue influence, a lack of mental ability, or other factors.
- The requirements of the state are not met. Every state has different regulations for what must be included in a will, how it must be signed, and who the witnesses must be. If any of these parts are lacking, the will may be invalid.
- Location. Some states may refuse to recognize wills made in another state. In general, your will should be written and signed in the state where you live.
Who Has the Right to Contest a Will?
While you may disagree with a will, you must have legal standing to oppose it in order to contest it. To contest a will, you must meet one of the following criteria:
A prior will and testament specify you as a beneficiary.
- You are named as a beneficiary in the present will.
- You are the beneficiary of a will that was written after the one in question.
- If there was no will and intestacy law was used, you would be an heir.
How Do You Contest a Will?
The legal procedure begins once you’ve concluded that you have standing and reasons to contest a will. First, figure out what the statute of limitations is in your state for a will challenge. This is the deadline for submitting legal documents. If the deadline passes without you filing anything, you lose your right to contest the will. It could be weeks, months, or years after the death or the filing of the will with the court.
You must submit a petition in the state probate court where the will is being probated to contest it. You can verify with the probate court office or employ an attorney because each state has its unique forms. The petition informs the court and the estate that you want to dispute it. Your matter could be settled or heard in court. The judge will decide whether or not the will is valid.
According to Patrick Simasko of Simasko Law in Mount Clemens, Missouri, “Depending on the city or state you live in, lawyer fees can range from $250 to $750 per hour. The battles can also last for several years.”
Contesting a will may be an uphill battle, so it’s advisable to get legal counsel about your chances before proceeding.
How to Contest a Will Without Hiring A Lawyer
Most of the time, carrying out a deceased person’s last wishes is very simple – their assets are distributed as ordered in the will, everyone mourns, and then everyone moves on, sometimes with somewhat heavier wallets. However, every now and again, there will be a test of will that must be overcome. Here’s how to contest a will on your own if you believe you don’t need a lawyer. Consider working with a financial professional for guidance on how to handle an inheritance windfall properly.
How Can You Contest a Will Without a Lawyer?
To contest a will without a lawyer, you must first ensure that you have legal standing. If you have legal standing, you must identify a valid justification for contesting the will. Then you must establish whether you are inside the statute of limitations in that state to contest a will.
Following that, you will file a petition in the state probate court where the estate is being probated. In most cases, these forms are available in person at the probate court or on the state’s website. All of this is possible without representation if you know what you’re doing.
Your petition informs both the probate court and the estate that you intend to oppose the will. If your matter is not settled, it will be heard in court, where you will argue why the will should be modified. The outcome of your lawsuit is decided by the judge.
Because probate attorneys typically charge between $250 and $750 per hour, some people choose to handle the issue themselves. Some lawyers, on the other hand, agree to contest a will on a contingency fee basis, which means they earn a portion of whatever is available following a successful will contest. Even if you decide to contest a will without the assistance of a lawyer, consulting with one or having them review your paperwork is a good idea.
How Much Time Do You Have to Contest a Will?
Once probate begins, you have a limited time to contest the will. The time frame varies by state and is known as a statute of limitations. In most cases, you’ll have between 30 and several months to contest the will. It is critical to understand that the statute of limitations begins when the will is filed with the probate court, not when the death occurs.
What Exactly Is a No-Contest Clause?
Some people do not want their heirs to battle over their inheritance. One strategy to limit this battling or will dispute, at least theoretically, is to include a no-contest clause in the will. Anyone who challenges a will is disinherited if their challenge fails. In other words, if you do not win your challenge, you will receive no compensation from the estate.
Who Can Contest a Will In Texas?
Any “interested” individual may contest a will in Texas. Interested persons include:
- Heirs
- Devisees
- Spouses
- Any other individual or entity with a property interest in or claim against the estate
Grounds To Contest a Will In Texas
In Texas, contesting a will is usually done using one of the following theories:
- Physical Act Revocation: The testator may have revoked the will through some physical activity, such as tearing it in half.
- Subsequent Instrument Revocation: The testator may have revoked the will by executing another instrument that qualifies as a will or simply by signing a document that declares he or she is canceling the will.
- Lack of Testamentary Capacity: If the testator lacked “testamentary capacity” at the time the will was executed, the will is null and void.
- Lack of Due Execution: When executing a will, certain statutory formalities must be followed (for example, the will may not have been properly witnessed or signed).
- Undue Influence: If the testator executed the will as a consequence of undue influence (e.g., one kid urges the testator to sign a will leaving everything to them and nothing to the testator’s other children), the will may be contested.
- Forgery of the testator’s or witnesses’ signatures is an example of fraud. It also involves the substitution of pages after the will is signed.
- Mistake: This covers cases in which the testator was unaware he or she was signing a will. Mistakes can also occur when the testator makes decisions about who to leave his or her property to based on incorrect notions.
Contesting A Will In Texas
Generally, once an application to probate a will has been submitted, the contesting party files a “will contest” challenging the validity of the will by citing numerous grounds why the will should not be allowed to probate.
When Should You File a Will Contest in Texas?
A contestant may submit a will challenge prior to a will being admitted to probate (but after it has been filed), as well as within two years after the will has been admitted to probate.
How To Contest A Will In Florida
To contest a will in Florida, a party must file a petition in the probate court where the will is being probated, requesting that the court annul or declare the will void due to undue influence, fraud, coercion, or other legal grounds. The estate and court will then be told of your want to contest the will, and the case will either be settled or heard in court, where a judge will determine its legitimacy.
People who can contest a will include:
- Beneficiaries specified in the present will and testament
- Beneficiaries of an earlier draft of the will
- Individuals who were not named in the will but who could have inherited the inheritance according to intestacy laws
Is There a Time Limit to Contest a Will In Florida?
According to Florida law, a potential claimant has only 90 days after receiving a Notice of Administration to assess his alternatives, gather the necessary supporting paperwork, retain an attorney, and file a formal lawsuit contesting the will. If a Formal Notice of Administration is received before the will is admitted to probate, the time frame is reduced to 20 days.
In Conclusion
You can contest a will if you feel that something’s not right. While some may prefer not to involve a lawyer, it is necessary that you seek legal advice before going on to contest the will. Having seen the legal grounds for contesting a will, you can follow the procedures laid out in this article to contest a will – and win!
Frequently Asked Questions
How long do you have to contest a will in New York?
You have about 12 months from the date of death to contest a will in New York.
How long do you have to contest a will in Kentucky?
You have up to two years to file for a will contest in Kentucky.
What makes a will invalid in Kentucky?
If the statutory formalities were not followed at the time of signing, a will can be considered invalid.
How long does it take to contest a will in Colorado?
If you want to contest a will, keep in mind that a settlement usually occurs within one year of filing, but a trial can last much longer, possibly even up to three years.
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