Overturning a will—a process that begins with contesting the Will—is a very difficult process. Probate courts make judgements about the validity of Wills, and their general practice is to honor the wishes of the deceased unless there is an overwhelming reason not to.
Most probate cases don’t involve contests to wills, and in those instances where there are contests, they generally occur early in the probate process—prior to the distribution of assets. If contesting a will prior to probate is difficult (and it is), contesting a Will after probate is nearly impossible.
[Need help with probate? We offer helpful probate services and will work with you to find the plan that meets your needs. Learn more.]
Reasons to challenge a will
If your exposure to the concept of Will challenges is limited to popular television shows and movies, you may think that someone is out there waiting to contest every Will that gets written. But in truth, challenges to Wills are relatively rare. And a person can’t challenge a Will simply because they don’t like the way assets will be distributed.
In fact, there are only a few valid reasons to challenge a Will:
The Will wasn’t signed in accordance with state law. Most states require that the testator (the person making the Will) sign the Will in the presence of two witnesses, who must also sign the Will.
The deceased lacked capacity. Arguing that the deceased lacked “testamentary capacity” is not just saying that they had memory loss or confusion, but that they did not understand what their assets were or who would inherit them when they signed the Will. This often requires a medical diagnosis or other proof that the person signing the Will was not of sound mind.
The deceased was unduly influenced. If the testator (drafter of the Will) was so influenced by someone else that they were unable to make an independent decision, then a court may agree that they were unduly influenced into changing or signing their Will.
The Will was secured through fraud. An individual who signed a Will thinking that they were in fact signing a medical power of attorney may be a basis for a finding that they were the victim of fraud and the Will they signed would not be valid.
There is a more recent, valid Will. The most recent valid Will is the only valid Will for the purposes of probate. If someone comes forward with a duly signed Will dated after the Will in front of the court, the earlier Will is invalidated.
Another important note: only people who are named in the Will or who would be if the existing Will were found invalid can make these challenges.
Challenging a will after the will has been probated
Challenging a Will almost always involves litigation, and people generally challenge a Will as quickly as they can so that no actions are taken—like distributing assets—in reliance on the Will that a party wishes to challenge.
When a Will (and the estate that it refers to) goes through the probate process, it must first be proven valid. Any challenges must be made before the court orders the Will valid.
Then any debts or taxes owed by the estate are paid and any remaining assets are distributed to the heirs. Challenging the Will after those actions have taken place is particularly difficult because the assets within the estate are no longer there, and the statute of limitations to challenge the Will may have passed.
If the Will that had already been acted upon were found to be invalid, the probate court would have to determine an equitable solution, and there’s not a clear rulebook for that.
Challenging a will after the estate has closed
When all the debts and taxes have been paid and all the assets have been distributed to the heirs, the executor notifies the court and the probate process is complete.
However, an estate can be reopened. These generally involve the discovery of some relevant information after the probate process has been completed.
For instance, say the executor discovers a bank account owned by the deceased that they weren’t aware existed during the probate process. The executor would be required to transfer that bank account to the estate and distribute assets in compliance with the terms of the Will. This isn’t a challenge to the Will. It’s simply the reopening of the estate and distribution of assets based on new information.
However, a Will challenge could occur after the estate closed if, for instance, someone who should have been included in the Will didn’t receive notice. If an heir had moved and their notice was sent to the wrong address so they never received their inheritance, they may choose to challenge the distribution of assets under the Will. Or if the executor learns that the deceased had a child they weren’t aware of and that child was not included in the asset distributions, the executor would be required to contact the court to determine how to resolve the issue.
At , we’re here to help you keep things simple. You can create a fully customizable, state-specific Estate Plan from the comfort of your own home in just 20 minutes. Take our free quiz to see where you should get started, or compare our different estate planning options today!
Is there a question here we didn’t answer? Browse more topics in ourLearn Center or chat with a live member support representative!
Trust & Will is an online service providing legal forms and information. We are not a law firm and we do not provide legal advice.
