When a person dies, the majority of her property is processed through a judicial proceeding known as probate. During this process, the court will determine which will should be used to distribute the property contained in the estate, what property should be included in the estate, and who should serve as executor. The probate court will also settle all disputes related to the estate. The details of probate law vary by state, so you will need to check state law for specific procedures.
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Establish that you have standing. Only interested parties in the estate can dispute the will and estate. For example, if you are a beneficiary of one of the decedent’s wills or one of the decedent’s relatives, you can contest the will.
Determine if you have appropriate grounds to dispute the will. You may contest a will if it was not drafted according to the state’s standards. You can also contest the will if you believe the decedent was not of sound mind when she drafted the document. If you believe the decedent was tricked or coerced into signing the will, you may also contest the will. Finally, if you can demonstrate the decedent did not intend to include certain provisions in the will but did so by accident, you may contest the will.
Check your state’s statute of limitations for challenging the will. Some states will limit when a challenge to the estate may be brought. For example, in Illinois, you must bring a suit to contest any part of the estate within six months of being notified the estate is in probate.
Review the will for a “no-contest clause.” A no-contest clause is a deterrent to contesting wills. If a beneficiary contests a will with such a clause, he loses all property he would have gained under the will. This does not deter others who have standing but are not beneficiaries under a will from contesting. Consider if you would like to contest the will based on what you risk losing if you do challenge a will with a no-contest provision.
File a petition with the probate court. The petition should state what estate you are contesting, why you can contest the will, on what grounds you are contesting the estate, and what action you want the court to take to fix the problem. File the completed petition with the clerk of court where the estate is being probated. Consider using an online document provider to help you draft the petition.
Tips & Warnings
- When contesting a will or estate, consider hiring a licensed attorney in your area to help you with the process.