Fraud – The decedent was deceived into creating a new will, amending their will or revoking their will. Forgery – A decedent's will was fraudulently signed by someone other than the decedent. Lack of Due Execution – The legal protocol for executing a will was not followed precisely.
The most common legal grounds for contesting a will include undue influence, testamentary incapacity, fraudulent acts, and improper execution. Each case is unique and requires careful evaluation.
A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. What is a subsequent writing? A testator can expressly revoke a will by a subsequent writing, a later will, or a codicil.
These include the heirs, beneficiaries, creditors, and other parties with rights or claims against the estate. These interested persons can only challenge a will for valid grounds. For instance, one can contest a will for fraud, undue influence, lack of testamentary capacity, or availability of a later valid will.
Exact numbers regarding the success rate of will disputes are difficult to pinpoint. However, the most recent estimates indicate that the success rate hovers around 1%.
A trust does not pass through the court for the probate process and cannot be contested in most cases.
A probate court monitors the probate process, which means the probate court can also have an executor removed. You can petition the court to have the executor removed, and once the old executor is removed, the court will find another representative to handle the estate.
A trust will allow you to achieve multiple objectives that will cannot. That said, these benefits may come at a price. Whether setting up a living trust is better than writing a will depends on the additional benefits and whether they outweigh the costs.
Insufficient testamentary capacity
One of the most common reasons for challenging a will has to do with the mental competence of the testator, or person making the will. In most states, you must meet a basic competency test to create a valid will. This includes understanding: The property you own.
One of the primary issues with joint wills is their inflexibility. It's important to understand that a joint will is irrevocable once one of the signees passes away; the terms of the will cannot be changed after that. This means the surviving spouse cannot alter the will if circumstances change.
The Will's Timing Is Suspicious
The sudden appearance of a new will after death, especially when it replaces a previous valid will, should always prompt careful scrutiny. The absence of proper due execution documentation can also signal potential irregularities.
However, there are several reasons why a will may be deemed invalid, including lack of capacity, undue influence, improper execution, fraud, duress, mistakes, and revocation. If you are making a will, it is essential to ensure that it is executed properly and that you are not under undue influence or duress.
There is no expiration date on probating a will after someone passes away. The will continues to act as the guiding document for settling the estate until probate concludes and assets are distributed to beneficiaries. At that point, the will has fulfilled its purpose.
Penalties for Failing to File a Will
An executor (or personal representative) has a fiduciary duty to the heirs of an estate. Failing to file a will with the court is not a criminal violation in most states. But the person could be sued by someone harmed by the inaction.
While executors have discretion in some areas, your core decision-making is bounded by: The deceased's will. You must follow their distribution wishes rather than diverging based on your own judgments.
As such, family members (more specifically, the deceased person's direct heirs) are the parties who are most likely to contest a will.
Estate beneficiaries who do bring an action against another beneficiary, heir, personal representative or third party can seek to have the alleged offender pay for the property or return it, and potentially seek punitive damages if the harm to property was substantial.
This means that the no contest clause will be triggered only when there is an absence of “probable cause” in the direct will or trust context. Probable cause is a low standard designed to protect an objector's right to assert arguable legal claims.
Kerri Mast: There is a range regarding how long it takes to settle an estate and several factors at play, including the asset value and complexity. Simple estates might be settled within six months. Complex estates, those with a lot of assets or assets that are complex or hard to value can take several years to settle.
California has one of the most detailed schemes, which provides that the executor fee is four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent on the next $9 million, one-half of one percent on the next $15 million, and a “reasonable amount" ...
Generally, it is substantially easier to successfully contest a will than to contest a trust, and there are several reasons for this. One reason wills are easier to challenge is that testamentary laws govern wills, while contract laws govern trusts. The structure of these documents is also crucial to consider.