After the death of a loved one, how they prepared and what estate planning they did becomes apparent quickly. When a loved one dies with a will, the family may or may not be happy with what winds up being on the will. They will typically go through a court-ordered process, called probate, to determine the validity of the will. For many reasons, beneficiaries can become upset by what they did or didn’t receive, and some individuals are entirely excluded from inheriting anything at all. The legal process of challenging the validity of a will is known as “contesting the will.” Keep reading to learn how to contest a will, when to contest a will, and how to protect your will from being contested in the future.
How to Contest a Will
After a person’s death, their family and loved ones will start going through probate. Once probate is underway, a designated person (called the executor) will be appointed by a judge to settle the estate. This person will complete probate by settling the estate (and all debts) and notifying the beneficiaries named in the will. In order to keep the process running smoothly, there is a limited timeframe when a beneficiary can contest the validity of the will. A beneficiary (as well as any person not named in the will) typically has thirty to ninety days to bring legal action against the decedent’s will.
Keep in mind, the vast majority of wills pass through probate without issue. Although, it can be a long process going through the court system. Because the testator (deceased) can no longer speak for themselves in a court of law, the courts rightly view the will like it’s their last voice. Challenging a will is difficult because the courts try to follow the legally filed will with strict adherence. Further, because of the tight deadline for filing a will contest and the odds stacked against winning the legal challenge, most challenges are a fruitless and costly endeavor.
When to Contest a Will in Nevada
Under what circumstances would it be appropriate or beneficial to contest a will? Legally, only a person or entity with “standing” can contest a will. Standing happens when the party who is contesting the will will be personally affected by the case’s outcome. For example, an heir or beneficiary that was named in any preceding will, or any person (usually a spouse or child) that was not named in the will, but because of state intestacy laws would be eligible for inheritance in the absence of a will. Typically, there are four common grounds for contesting a will.
Common Grounds for Contesting a Will
- The will was not signed with proper legal formalities
- The mental capacity of the decedent when they wrote the will is in question
- There was undue influence someone leveraged over the decedent into making or changing a will
- The will’s procurement is fraudulent
There are also certain patterns that commonly lead to contesting a will. For example, if a testator writes their own will, some legal formalities may be overlooked, and the will can be rendered invalid depending on the state the decedent lived before death. In particular, the “do it yourself” method for creating a will that is found online may not include all of the legal formalities necessary. Leaving out certain “what if” scenarios can make the will incomplete in certain states. Another example shines a light on possible elder abuse. If the testator (deceased) is experiencing isolation from family and friends, the primary beneficiary’s influence and motives regarding the estate may be questioned. If the executor is trying to enforce an outdated will, the newer one should supersede the older one as long as no coercion took place during writing the most recent version. Finally, some medical evidence may suggest the testator lacked the mental ability to make a will. Occasionally the challenger to an existing will can negotiate a settlement with the estate instead of enduring a long probate court process.
How to Protect Your Will from Being Contested
Some wills include a no-contest clause, also called an “in terrorem” clause. This provision states that if anyone files a lawsuit challenging the will’s validity, they will receive nothing from the estate. While this may a powerful deterrent, only some states recognize this clause so it may not be allowed in the state where the will is probated.
To protect your will from being contested, even if you have limited assets, the best strategy is to have your will professionally drafted by an estate planning attorney. Further, complex estates should not use the $99 cookie-cutter will option. It is best to work with an estate planning and asset protection attorney who can help protect you and your family with estate planning that meets your needs. Using an attorney can help protect you and your estate from future legal challenges while helping you think through who you want to inherit your money and property, and how each person should receive what they inherit.
If you would like to discuss drafting a will here in Nevada, talk with the estate planning attorneys from Michaelson & Associates. Give us a call at 702-731-2333 to schedule a consultation.