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It’s hard enough having to deal with the passing of a loved one without also discovering that a will or inheritance you expected to be a part of ends up leaving you out. The surprise can be both jarring and disheartening. Also, it can be disappointing to be unable to exercise your claim to a portion of a deceased loved one’s estate—mainly when you believe including you was what the deceased would have wanted.
Be forewarned. Contesting a will can be an arduous task. There are legal hurdles, evidential requirements, and often an abundance of hard feelings between you and other survivors.
There is also an element of time sensitivity.
When you discover that you have been unfairly left out of a will, you need to take immediate steps to legally prove that a will’s terms should be dismissed if you feel coercion, fraud, or diminished mental state may be behind your exclusion. Before you take action, however, you should also determine if you’re willing to take on the challenges involved.
Does contesting the will make financial sense? Will the cost outweigh your gains? Are you willing to take on the emotional toll? It could be a long, stressful process. If you are claiming coercion, fraud, or diminished mental state, how solid is your proof?
Finally, have you spoken with an attorney and gotten their opinion on how realistic your chances are?
Unless you are a family member or were explicitly mentioned in the previous will, you may have no legal standing to contest the will. If you are still determined to challenge the terms of the will, calculate the cost versus the benefits.
Did the deceased discuss providing an inheritance for you? Write down as much as you can remember about the conversation and what was promised. Next, figure out the dollar value, whether it involved money, possessions, or both. If there were no specifics discussed, but the inheritance was considered in more vague terms, you will have to come up with high and low estimates based on what you know of the deceased’s estate.
How do the amounts you’ve estimated compare to the legal costs? If the estimates are below twice the retainer fee for legal representation, you may want to cut your losses now. It’s not unusual for estate fights to end up costing more than the inheritance.
If you decide to move forward, and you feel you can prove that changes to a will were the result of coercion or diminished mental state, you’re going to want to get your hands on a complete copy of the will. The executor of the country should be able to provide you with not only the intention but any previous versions and a list of assets. The executor should also have made notes regarding significant changes made. This may make it easier to find out why you were not included in the final document.
If the deceased’s estate has already entered probate, the probate court can provide you with a copy of the will and give you information regarding how much time you have to contest it. Laws and timelines vary from state to state, so it’s at this point where you may wish to have a probate lawyer assist you with obtaining and filing documents and challenges.
It’s at this point where you may wish to talk with a lawyer about how reasonable your case is. Remember, the deceased has the right to disperse their assets in any manner they want to. To contest those decisions, you’re going to need ironclad proof that one or more of the following conditions apply:
Your lawyer should be able to tell you how good your evidence looks and how likely a challenge to the will come out in your favor.
If your lawyer agrees that you have grounds, they will file a contest against the will. The purpose of this move is to invalidate the current version of the will in favor of a previous version that lists you as a beneficiary. Note that if there were more than one revision, each revision between the most current to the one listing, you would have to be contested and overturned individually.
Also, consider that when it comes to the burden of proof, that’s all on you. It’s your obligation to prove why the will is invalid.
In the end, your better option might be mediation. Rather than spend an excessive amount of time, money, and stress on a problematic challenge process, your lawyer can guide you and the estate to a sit-down mediation process in which both parties can walk away satisfied without all the legal costs of a court battle.
Being left out of a will can be upsetting and seem like a grave injustice. There are processes in place that allow you to challenge an intention that you believe has been unfairly put in place, but the process overall can be arduous.
A qualified and competent attorney can help you decide your best course of action based on their experience with the law and the strength of your case. Not everyone may end up happy, but you can rest assured that it will be fair.