| CONTESTING
A WILL OR TRUST
A will is supposed to
express the desires of its writer, the testator, for
the inheritance of his or her estate. Similarly a trust,
whether created by a will or during the person's lifetime,
is supposed to be signed by the settlor (the person
making the trust) of his own free rationale will. If
the will or trust does not truly reflect the settlor
or testator's desires it could have been obtained by
undue influence. Additionally, the testator or settlor
may have been mentally incapable of making the will
or trust. These are the two major bases for challenging
a will or a trust.
If you are a relative of, or had
a special relationship with, the settlor or testator
and would have inherited under a prior will, prior
trust or under your state’s
intestacy laws (laws that govern if a person dies without
a will), you may challenge a will submitted for probate.
Even if the will has been admitted to probate, it may
not be too late to make a challenge. Generally, a will
may be contested for up to two years after it is admitted
to probate.
If a will is set aside, the estate will be distributed
according to a prior will if that prior will can be
admitted to probate. If there is no prior will, or
if the prior will cannot be admitted to probate, the
estate will be distributed to the decedent's relatives
pursuant to set formulas established by the legislature
under intestacy laws. For example, if a decedent dies
without a valid will, he had two children survive him,
and no surviving spouse, the two children will equally
split the estate.
You should contact us as soon as
possible after the death of the person from whom
you think you are entitled to inherit (you can even
contact us before the person’s
death if you know there is going to be an issue). There
may be significant advantages under the law to challenging
a will or trust shortly after the person’s death.
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