A will or trust contest can derail your final wishes, rapidly deplete your estate, and tear your loved ones apart. But with proper planning, you can prevent a disastrous will or trust contest. In this issue you will learn:
- What a will or trust contest is
- Who can contest a will or trust
- When a will or trust contest can be filed
- The legal grounds for contesting a will or trust
- How you can avoid a will or trust contest
If you want to learn more about how you can protect your estate plan against a will or trust contest, please call our office now.
What is a Will or Trust Contest?
A will or trust contest is a type of lawsuit that is filed to object to the validity of a will or trust.
If a will or trust is successfully contested (i.e., declared invalid), then the court “throws out” the will or trust. This essentially places your family in the position it would have been without the challenged will or trust. This can be a disastrous outcome for your intended beneficiaries.
Who Can Contest a Will or Trust?
Only a person who has legal “standing” can file a lawsuit. Standing means that a party involved in a lawsuit will be personally affected by the outcome of the case.
The following people may have standing to question the validity of a will or trust:
- Disinherited or disadvantaged heirs at law – Family members who would inherit or would inherit more under applicable state law if you failed to make a valid will or trust
- Disinherited or disadvantaged beneficiaries –Beneficiaries (such as family, friends and charities) named or given a larger bequest in your prior will or trust
Planning Tip: Not everyone involved in your life will have standing to challenge the validity of your estate plan. For example, even if a friend or business associate suspects that your will or trust is invalid, they will not have standing to contest it (unless they are your heir at law or named in your prior will or trust).
When Can a Will or Trust Contest Be Filed?
Nine states’ laws allow residents (and in some states nonresidents) to establish the validity of their estate plan before they die: Alaska, Arkansas, Delaware, New Hampshire, Nevada, North Dakota, and Ohio. This pre-death validation process allows you to confirm your estate planning decisions while you are capable of defending them, which, in turn, will bar challenges to the plan after your death.
The time limit and procedures for contesting a will is determined by the law and rules of the state in which the probate case is filed.
With regard to trusts, the time frame and procedures to contest them varies greatly from state to state. In some states, your heirs can be limited to as little as a few months to contest your trust, while in other states the time frame can be as long as a few years.
Planning Tip: It is important to understand the time limits that an interested party has to file a will or trust contest, since in many states missing the deadline will completely bar the party from filing one.
