Any interested party may file an objection to the distribution of an inheritance. Inheritance objections are filed in the probate court where a decedent's estate is pending. Each state has individual deadlines for when inheritance disputes must be filed. Generally, objections must be filed within three months after heirs are notified the court has opened a probate case on the decedent's estate. When an objection to an inheritance is filed, the probate judge sets a hearing. The hearing offers aggrieved heirs the opportunity to produce facts and legal arguments to establish why an inheritance is improper.
Inheritances can be challenged on a number of grounds. Generally, this is done through a probate proceeding commonly known as a "will contest." Heirs can request the court invalidate a will if they believe it is fraudulent, not witnessed or signed improperly. Wills also can be thrown out if the maker was under duress or not mentally competent when he signed it. Most states require the production of an original will; therefore, an heir can object if a photocopy is offered for probate.
Sometimes a spouse or child is inadvertently disinherited. State laws that address forgotten heirs are commonly referred to as pretermission statutes. For example, Harry has one child when he makes his will and leaves his entire estate to him. A year later, he has a daughter. He dies before updating his will to include her. She may argue she was accidentally overlooked.
Spousal Elective Shares
State laws protect spouses from being intentionally disinherited or treated unfairly in their spouses' wills. Generally, a surviving spouse can choose to receive what is called an "elective share" instead of accepting the terms of her spouse's will. State laws regarding the calculations for elective shares vary widely. A spouse should consider her own state law when deciding if an elective share claim makes economic sense.
No Contest Clauses
Some wills discourage inheritance disputes by incorporating "in terrorem" clauses. In terrorem clauses are also called "no contest" clauses. They potentially punish an heir for challenging an inheritance. If an heir dislikes the size or nature of his inheritance under a will, he may lose it all if he launches an unsuccessful will challenge. In terrorem clauses force an heir to choose between taking what is left to him in a will or risk losing it all.