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Who can Contest a Will?

Yes, it is possible to sue a will during the probate process, but not everyone can sue to contest a will.

For instance, you cannot challenge your cousin's will just because you believe his estate would be better off in the hands of another relative. You also cannot contest a will just because you do not believe you received a fair share of the real estate or bank account or some specific piece of personal property.

Can You Sue to Contest a Will in Probate Court?

According to basic probate laws, only "interested persons" may challenge a will, and only for valid legal reasons.

The Probate Code identifies "interested persons" as heirs (family members), beneficiaries, creditors, and other parties who have a property right or claim against the estate being administered.

Valid legal reasons to contest a will include:

  • Incapacity of the deceased person when they wrote the will

  • Fraud or someone exerting undue influence over the testator

  • Insufficient or inappropriate witnesses

  • Unclear provisions of the will (googling templates and DIY without consultation)

  • The existence of a later valid will

What Type of Will Cannot Be Contested?

Any will can be contested if you have standing and valid reasons to challenge it. However, it may not be worth contesting a will. For example, some wills include a "no-contest" clause. A no-contest clause says that if a beneficiary or an heir challenges a will and loses, they will not inherit at all. They are disinherited.

No-contest clauses are not enforced in every state:

  • In some states, if you sue and lose, you can still inherit what you would have inherited if you had not sued.

  • Some states enforce no-contest clauses unless the person bringing the lawsuit has a good reason to sue.

Consult with a local estate planning attorney to learn how your state probate courts handle no-contest clauses.

What Are the Consequences of a Will Contest?

The most obvious consequence of contesting a will is the cost of going to court. Most people will choose to hire a probate litigation attorney to bring a will contest lawsuit to court. Depending on the size of the potential inheritance and the complexity of the case, the expense of a will contest may or may not be cost-effective. Your lawyer can advise you on this.

On the other hand, if the estate is large, it may be well worth the time and money to challenge a will in probate court.

No-Contest Clauses in Wills

If you are a beneficiary of a will and there is a no-contest clause, there is a possibility that if you lose your lawsuit, you could be disinherited. But again, that will depend upon whether your state enforces no-contest clauses. If you are not a beneficiary of the will and you sue for an inheritance, the no-contest clause will not affect your case because you would not have inherited anyway.

Have a Probate Attorney Evaluate Your Potential Estate Litigation Case

Sometimes it's not so simple determining who has standing or cause to challenge a will. An estate planning attorney can review a copy of the will and provide legal advice to secure your financial interests. Get the ball rolling today by speaking with a local estate planning lawyer.

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