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The death of a loved one is always challenging, shocking even if you anticipated it, and often confusing. Not only do you have to process grief and make funeral/memorial arrangements, but you also have to manage the estate of the deceased.
In most cases, a last will and testament must go through a probate process and if it is contested, or if you want to contest a will, It will be heard before a probate court.
Hire competent probate attorneys
The first and most important step in contesting a will is to make sure you are adequately represented. You can represent yourself, but the smart play, because you are not an attorney, is to hire experienced probate attorneys that specialize in probate law.
Not only can they help you navigate the process, but they can also give you an idea of what to expect and make sure that you have the strongest argument for the contested will possible.
You cannot contest a will just because you do not like what is in the will. There are many reasons you can, however, question a will, including:
- Calling into question the mental state of the deceased,
- Challenging undue influence from another party,
- Fraud, forgery or suspected extortion,
- Improper drafting and execution of the will.
Do the Research
After you have decided to contest a will and have discussed it with your attorneys, it is important for you to collect as much data about the situation as possible.
You will need to research when the will was drafted, who witnessed it, the state of the will-maker, state laws that apply to the drafting and execution of the will, etc. Rely on your attorneys to give you guidance regarding what information to gather.
The more evidence you can gather to back up your version of events, the better your chances at successfully contesting the will. Gather every detail you can find about the health, mental and emotional state of the deceased, who they were getting counsel from, any attorneys that were involved, etc.
Petition the Court
Once you have decided to contest a will, you have to take it up at the probate court. You will need to fill out and file a petition challenging the will. Your attorney will ask you questions, assemble data and draft the argument justifying your petition.
Beware of No Contest Clauses
A no-contest clause stipulates that anyone that challenges a will risks their interest in the estate. This is one way of controlling who can contest a will. If that happens, a third party with standing in the probate court must file the petition or you must prove the clause or the will is invalid.
Negotiation and Settlement
One possible solution is to negotiate a settlement with any opposing parties. This must adhere to state laws and it is best left to your attorney to conduct. It is one way, however, to avoid a long and costly legal battle.
Contesting a will is not hard, but you must do your homework and make an iron-clad case. This process should give you some general direction to follow until you can discuss options with an attorney.