Challenging a will can happen for a variety of reasons. Someone who believes they should have been a beneficiary might contest a will. However, you may want to protect your loved one's wishes to ensure you carry out their will according to their plan. Either way,...
My Loved One’s Will Is Being Contested
Recommended for you
When you find yourself in an issue that requires legal assistance, you may feel overwhelmed by the burden of a high cost to help resolve the matter. Fortunately, Texas residents can access affordable legal services through Texas Legal. What is Texas Legal? Texas Legal...
Challenging a will can happen for a variety of reasons. Someone who believes they should have been a beneficiary might contest a will. Ultimately, if your loved one’s will is being contested, we want to prepare you with everything you need to know.
This article will discuss what it means to contest a will, the common reasons why people challenge a will, and ways to prevent your loved one’s will from being contested.
My Loved One’s Will is Being Contested. Why?
Challenging a will means that someone is contesting the validity of the will. This process requires issuing a formal lawsuit against the deceased individual’s will. Additionally, it requires taking the issue to court for a judge to decide the validity of a will.
To challenge a will, the contestant must have grounds to do so. Below are some common reasons your loved one’s will is being contested.
First, for your will to be valid, you must have been of “sound mind” when you made the will. “Sound mind” requires understanding the nature of what you are doing and the consequences of your actions. If someone can show that you did not have this understanding, then your will may be contestable.
Second, the court can declare a will invalid if you prove it was obtained by “undue influence,” which involves someone in a position of trust, manipulating the will-maker to leave behind their property to the manipulator instead of to those expected to receive it. This person might include a caregiver or an adult child.
Fraud or Forgery
Thirdly, you can contest a will based on fraud or forgery. For example, you may argue that someone tricked the will-maker into signing a document or that someone forged the signature.
Ways to prevent contesting your will
The death of a loved one is often full of emotion. If a family member is dissatisfied with the amount that was (or was not) provided under a will, he or she may challenge it. Will contests might last for years, preventing all heirs from receiving what they are entitled to.
It’s important to make sure your will is in order to keep your loved one’s will from being contested. Below are some ways to avoid someone challenging your loved one’s will.
Most importantly, the time to start estate planning is now. Don’t wait until a decline in health is near. Creating a will early can avoid the argument of challenging one’s “mental capacity” or that the will was written under “undue influence.” The will-maker can update their will at any time, so it’s best to start with something, even if changes occur over time.
Consider a Trust
A trust provides an additional layer or protection from a dispute against your will. A trust can help a will avoid probate. Essentially, the trust acts as a passageway for the will-makers assets to the heirs. However, a will that distributes assets to a trust means, upon death, nobody gets anything, and the trust gets everything. Think of a trust as a living document. While a will only goes into effect after you die, a trust covers all phases of life and can live on long after you die. Much like an LLC, whoever controls the trust (members, owners, trustees) decides how assets are used or distributed based on the bylaws of the trust.
Don’t Keep it a Secret
Consider letting loved ones know exactly what is included in the will and state reasons why. Complete secrecy may cause conflict to arise, so keeping loved ones informed will eliminate any big surprises upon death.
Make Sure It’s Legal
Every state has laws for what is considered a legal will, and it’s crucial to understand each state’s laws. See Texas laws here.
Signatures, dates, and witnesses are also significant components in determining the validity of a will. Often, a will must be dated and signed in the presence of at least two adult witnesses, and these witnesses must also sign the will. In most states, a witness cannot include those named to inherit any property in the same will.
Some states require all will and estate planning documents to be notarized for the papers to be considered valid in court. In order to make sure your will is properly executed, work with an estate planning attorney in Texas.
Can I Avoid Having My Loved One’s Will Being Contested?
While the short answer is “No,” many states do allow for a no-contest clause. The no-contest clause is a provision that you can include in your will to help protect your will from being contested. Essentially, if anyone files a lawsuit to challenge who you provided for in your estate plan, then the person challenging the will receives nothing from your estate.
This can be a powerful deterrent to someone who is receiving what they perceive to be less than their fair share of your estate.
Ultimately, writing a will always leaves room for someone to contest the will. However, working with an estate planning lawyer is a good place to start to protect your assets and protect your loved ones from the headache of a contested will.
Why Hire an Estate Planning Lawyer in Texas
Although you create a will on your own, having an estate planning lawyer work on your behalf is always a good idea.
Dooley Noted can walk you through creating a will that fulfills necessary legal requirements. Working with an estate planning lawyer can avoid someone challenging a will in probate.
Whether you need assistance with a will or estate planning before or after a loved one has passed, be sure to speak with an experienced estate planning attorney at Dooley Noted.
We specialize in wills, trusts, and estate planning, and we would be happy to assist you with your estate planning needs. Schedule a free consultation with us today.
The contents of this post, and the posting and viewing of the information on this post, should not be construed as, and should not be relied upon for, legal advice in any particular circumstance or fact situation. An attorney should be contacted for advice on specific legal issues.
Recommended for you
Homeowners insurance is for situations where damage is likely too expensive to cover out-of-pocket. However, a standard homeowners insurance policy will only cover problems such as theft or internal fire damage. But have you considered coverage to protect your home...
While finding great housing is tough, some tenants put up with more hassle than they should. For instance, if your landlord won't fix the AC in your rental unit, many renters feel they have no rights and must succumb to whatever the landlord says. However, this is not...
It is not uncommon for U.S. citizens to marry people outside the states. If your spouse is not a citizen, you may wonder how to bring them to the United States. While employment visas provide a temporary option for your foreign spouse to enter the states, the most...