5 minute read

Contested Probate: When Can it Happen and What to do About it

When you file for probate, individuals have the right to contest it if they have legal basis. Find out when someone might contest probate and what to do about it.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

After the passing of a loved one, there are a number of legal and administrative duties that must be fulfilled. When they don’t go smoothly, it can make the grieving process that much harder. Imagine if you pulled off the task of filing the Will for probate, only to find out that it got contested by another party. Why can this happen? What are you supposed to do now? Trust & Will explains when contested probate can take place and other important things you should know. 

Contested probate definition

A contested probate takes place when two or more individuals or entities have disagreement over a deceased individual’s estate settlement. They may have a disagreement over the validity of the Will and/or how the decedent’s assets should be distributed. 

When an individual passes away, from a legal perspective, one of the first orders of duty is to file a petition to open probate. If a Will is available, then the Will is also filed for admittance at this time. The Will is only assumed to be legally valid until it is formally admitted and validated for probate. Here, any individual or entity with a stake in the deceased’s estate can file a competing petition up until the time probate is opened. When this occurs, the probate is contested and thus is called a “contested probate.” 

Why would someone contest probate?

When someone decides to contest a Will or probate, it should be an action that is taken with great care. This is because contesting probate creates consequences for all parties involved, such as creating delays or even dislodging a Will. 

For a Will to be successfully contested, there must be a valid legal reason for it to be reconsidered. There may come a time when an heir might be tempted to contest a Will for emotional reasons. For example, perhaps they receive a copy of the Will and feel that their inheritance is unfair. However, contesting probate solely for the emotional reason of unfairness does not provide legal basis for successfully contesting probate. 

Therefore, the reasons someone might be able to contest probate successfully are somewhat limited. It needs to take place that the person or entity needs to believe that the Will isn’t valid for legal reasons, or has legal reasons for which they think they have a claim to the estate (and otherwise weren’t included in the Will.)

Top 3 reasons probate is contested

To give you a better idea of when someone might contest probate, here are three of the most common reasons: 

  • An individual might feel that a beneficiary listed on the Will is receiving more than they are entitled to. They may contest the Will in an effort to prevent this person from receiving this or that asset. However, they may or may not have a legal basis for doing so.

  • Similarly, an individual may contest probate if they feel like they are receiving less assets than they’re legally entitled to.

  • An interested party may discover that the Will submitted with the first petition for probate is invalid. For instance, they may find that it is lacking a signature. Alternatively, perhaps they are concerned that the Testator wasn’t of sound mind when they signed their Will. For these reasons, they may contest the Will. 

Contested probate FAQ

Understanding whether or not contested probate is legally valid or invalid is understandably confusing for all parties involved. Someone might contest probate when they don’t have a valid reason, and it could ultimately be dismissed. In other instances, the argument could be legally sound, causing some serious delays. Here are the answers to some frequently asked questions regarding contested probate so that you can be informed in case a competing petition is filed.

How will the court respond when someone contests probate?

Let’s explore what happens when someone contests probate and the probate court determines that their reasoning is valid. 

Understandably, this circumstance can feel stressful, especially since it will create delays and potentially increase costs for all parties. This stress is only worsened by being in the dark, so it’s helpful to understand how the process will proceed.

When a competing petition is submitted, you’ll be notified. Further, you’ll receive a new court date that pushes back your originally scheduled date. 

This new court date is the contest hearing where the judge will review both petitions. The key objective of this contest hearing is to determine whether or not the Will from the original petition is indeed valid or not. At this time, the competing party will present any discovery or evidence they have to support their argument. 

Is it possible to contest a valid Will?

You might be thinking, “hey, wait, I know that the Will I have in hand is completely valid.” You might imagine that in this case, you don’t have to worry about anyone contesting the probate case you petitioned for.

Ultimately, however, it is possible for someone to contest a Will, even when it’s valid.

The key word here is “contest.” This is an attempt to claim (with the intent to prove) that the Will is legally invalid. Ultimately, if your Will is truly valid, then it won’t be dislodged. If there is an issue with the Will (perhaps you didn’t realize), then the Will could get overturned. The point being, another individual has an equal right to file a petition if they wish. The court will look at any available evidence to make their decision. If their claims don’t have any legal basis, then their contest will fail. 

In most states, a Will is only valid if the Testator signs it while in a sound state of mind. An appropriate number of witnesses also leave valid signatures. It’s often helpful if the Testator had the document notarized. Some states even require notarization of Wills. This makes the document “self-proving,” meaning that it is much harder to question its validity. However, if the court determines that the Will is lacking any of its requirements for it to be valid, then it may be dislodged.

Here are some possible reasons an individual might contest a technically valid Will:

  • They may believe that there is something wrong with a signature on the Will, including any witness signatures. For instance, there can be cases when a signature could be forged or otherwise fraudulent.

  • The Testator signed the Will at a time when they were not of sound mind or were under undue influence. A Will is only considered valid if the Testator was able to read the Will, agree with its terms, and provide their original signature of their own will.

Can anyone contest probate?

Here are the types of individuals who are eligible to contest probate or a Will:

  • An individual who was named in the currently-petitioned Will

  • An individual who was named in any prior version of the Will

  • Someone named within the Will’s codicil, which is a legal document that adds to or amends the Will

  • Any next-of-kin of the decedent

While anyone can attempt to contest probate, only those who fall into one or more of the categories above will be permitted to proceed with the process.

Someone contested probate, what should I do?

As the Executor of the Will, it is your responsibility to respond to any contests that might take place. While it isn’t always easy, knowing what steps to take is helpful. 

The exact steps you need to take will depend on the laws of your state. Typically, your main duty will be to gather evidence and an argument that the version of the Will you filed is valid. These will be presented at the hearing. If no resolution is sound, be prepared for the issue to escalate to mediation, and further, trial. Ultimately the probate judge is responsible for hearing all evidence presented and making a ruling. 

What can invalidate a Will & what happens?

There are several issues that could potentially invalidate a Will, ultimately causing it to be dislodged by the probate court. Here are some examples:

  • It is proven that the Testator didn’t have the mental capacity to create or sign the Will.

  • A signature on the Will is forged (either the Testator’s or a witnesses)

  • Someone with a claim to the estate finds a more recent version of the Will

  • The Will was prepared while the Testator was under undue influence or duress (for example, they are manipulated or bullied into amending the Will)

  • Simple human errors or honest mistakes

  • The Will is revoked

If the Will in question is declared invalid, then it is dislodged by the probate court (meaning it is thrown out.) In the absence of a valid Will, the court will use state intestacy laws and next-of-kin rules to determine how the decedent’s estate should be distributed. The invalid Will no longer has any influence over what should happen. 

Navigate probate with confidence

While there could be worse things, finding out that a probate case that you petitioned for is now contested can be a major headache. As the Executor of a Will, that means that not only are you handling the administration of an estate, now you are dealing with the extra burden of navigating a competing petition. If you were close to the Testator and are grieving, this can be a lot for one person to handle. 

One of the best ways to navigate a contested probate is to seek support, even if you were planning on handling the process autonomously before. At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help.  Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.

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