Contesting a Will

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Modified on 2009/10/14 21:44 by admin
Benjamin Franklin said it back in 1789, "in this world nothing can be certain, except death and taxes." Unfortunately, things have not changed. We're all going to die and the Internal Revenue Service will not be sending a sympathy card along with their bill for almost half of what you leave behind.

It's a shame. You work all your life, accumulate assets, raise a family, and when it's over Uncle Sam wants half of it. As Franklin said, that's a certainty. But who gets the other half? It is spelled out in your will. Right? What? You don't have a will? If that's the case, you're leaving behind a nightmare for your family. The possible financial and legal entanglements of dying "intestate" are enormous. Clearly, executing a will is important, but even more significant is how you choose to draft your will. It may turn out to be one of the most important decisions you will make during your lifetime. Many people very close to you are depending on you. Your spouse and children especially.

With most families, the legal distribution of a will is a peaceful process. Often, though, a beneficiary believes he or she was slighted by the benefactor. It is at this point that a potential heir may wish to contest the will. This usually occurs when heirs of larger estates are not happy with their share of the assets being distributed. They want more and they are willing to go to court to get it.

To contest a will in probate court, a plaintiff must have "interest" in the distribution's outcome or "standing" to object, such as when a decedent's child is left out of a will or receives less of a parent's estate than his or her sibling. Often, a second will is produced in which an heir stands to inherit less than in the original. These situations usually produce a dispute among the beneficiaries as one or more of the heirs attempt to prove a will is invalid.

Challenging a will's validity can be difficult although several objections exist for a potential plaintiff. An heir may claim the maker of the will (testator) was mentally incompetent at the time the will was signed; another party who had an interest in the will unduly influenced the decedent (as was the case in the recent well known lawsuit of Anna Nicole Smith); the will is a forgery; a second will exists or the will was not properly signed or validly witnessed. Although state laws may vary, plaintiffs must challenge a will in probate court promptly, often within months of the testator's death.

Will contests are long, expensive and downright dirty. They can pit brother against brother, mother against son and they can tear families apart. They can be a strain on the emotions of all those involved. Sibling rivalries often spurred by jealousy fuel the majority of will contests. To avoid these problems, will disputes are often settled out of court. Besides, while a will is being contested the distribution process is temporarily suspended. Nevertheless, contesting a will is important and often necessary. An experienced probate attorney is always required.

If you are considering contesting a will, it may be important to contact an attorney who can help you protect your legal rights. Please keep in mind that there may be time limits within which you must commence suit.

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