Information on Contested Wills

by A.L. Kennedy
Probate proceedings stop while the will is being contested.

Probate proceedings stop while the will is being contested.

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A contested will is the subject of a lawsuit that argues that part or all of the contested will is invalid. Any probate proceedings stop while the will contest is heard in probate court. If the will contest is successful, the probate court then ignores the part of the will that was contested or the entire will, depending on the contest case, and distributes the estate according to state law as if the will never existed.

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Reasons for Contests

A will contest argues that the will is not valid according to state law. Usually, a will is contested because the person contesting it believes that either the testator did not have the mental capacity to make a will, or the will was the result of coercion, intimidation or fraud by another person. Sometimes, a will contest is filed because the person contesting the will believes that part or all of the will is a forgery that was not created by the testator at all. Although some beneficiaries may consider filing a will contest simply because they don't like their share of the estate, this alone is not a sufficient basis for a contest.

Who May File Contests

A will may be contested by anyone who has standing, or an interest in how the will contest turns out, according to FindLaw. The interest must be a specific thing that the person will gain or lose if the will is found to be invalid. Most will contests are filed either by people who stand to receive something according to the will, or people who are not included in the will but who stand to receive something under state law if there was no will.

Process

A will contest begins when the person contesting the will files a will contest with the probate court. In most states, the will's executor or personal representative is responsible for defending the will's validity, according to the American Bar Association. During the will contest lawsuit, the executor may pay the estate's bills, take an inventory of the estate and manage the estate's assets, but may not distribute the assets of the estate to any of the beneficiaries. This is because the beneficiaries may change if the will is found to be invalid, according to FindLaw.

Possible Outcomes

A will contest may end one of three ways, according to Financial Web: the court may find that the will is valid, in which case the executor will be able to distribute the assets according to the will's instructions; that some portion of the will is invalid; or that the entire will is invalid. If the probate court decides that part or all of the will is invalid, it will instruct the executor to act as if the invalid part or the entire invalid will does not exist. In this case, the executor will distribute the assets in the estate according to the state's laws of intestacy, which govern how to handle the estates of those who die without a will.

Who Can Take Under Intestacy

If the will is found invalid, most states allow only close relatives to receive an estate under intestacy laws. These include the deceased person's current spouse, his parents and any children he may have. If no one is alive who can receive the estate under intestacy law, the property may go to the state.