Without some communication about what’s in a person’s will, there can be big surprises when this individual passes away—especially if children or grandchildren are cut out. A recent business2community.com article, “How to Successfully Contest a Will,” says that if you are left out of a will you may be pretty upset. Although you may never know why your loved one made this decision, there are some steps you can take.
Contesting the will as a spouse: the right of election. If your spouse left you out of his or her will, you would be entitled to the right of election in most states. This means that you can reject the will and get a certain dollar amount or percentage of the estate pursuant to state probate law.
Contesting the will as another type of heir. Other than a surviving spouse, no one has an automatic right to inherit anything, meaning a person can cut out anyone they choose. However, people can contest the will’s validity on other grounds:
- Improper signing: If the will wasn’t signed in accordance with state laws, the will may be thrown out. For example, in most states a testator must sign the will in the presence of two witnesses who are unrelated to him or her by blood or marriage.
- Lack of capacity: We’ve seen this many times in the case of billionaires changing their wills right before they pass away. If the testator can be shown not to have had the capacity needed to create and sign the will, then the will may be invalidated. People who have dementia can still be considered capable of executing a will if they intermittently displayed the necessary mental capacity.
- Undue influence or fraud: What if a person was forced to sign the will or signed it without realizing he or she was signing a will? What if someone swapped pages in the will when the signature happened? In each of these instances, the will could be invalid.
- A later will or codicil: A will can be invalidated if another one, signed later, is discovered. The most recent will is used, and it’s as if the old one doesn’t exist. If the testator signed a codicil or amendment to the existing will, both the codicil and will are probated. Any changes or additions made in the codicil will control the distribution. A codicil can also be contested, just like a will.
When a will is invalidated, a number of things could happen. If there’s an older will that was signed before the now invalidated one, that one could take effect if the court approves it. If there’s no other will, the estate is divided according to the terms of state intestacy laws. Typically, assets are divided among the spouse and children. Other relatives may get something if there’s no spouse or child.
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Reference: business2community.com (June 28, 2016) “How to Successfully Contest a Will”