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Commonly Contested Items in Probate

Because estates are larger in value and size today, challenges to wills and their validity or contesting probate occurs more often. The increase in probate contests has been significant. Any number of interested parties can chime in and disagree over how a decedent's estate should be divided and distributed to beneficiaries.

Variety of Factors and Reasons

There are many reasons a party may decide to contest a will. The following list is not intended to be exhaustive, but rather, merely a representative list of the types of many and varied factors and reasons that may motivate a party to contest a will or probate process:

  • A beneficiary disagrees over the inheritance amount he or she received.
  • A beneficiary brings a claim on the grounds that the decedent's dependents/family members did not receive a reasonable financial distribution from decedent's estate.
  • A beneficiary receives nothing under a will, but believes he or she should have been included.
  • A professional negligence claim is brought against a professional who performed some sort of services with respect to the will, such as the attorney who prepared the will.
  • Executors of the will disagree.
  • Beneficiaries under a will bring a claim against a trustee.
  • Beneficiaries under a will bring a claim against a personal representative.
  • A decedent is alleged to have lacked sufficient mental capacity to execute her will.
  • A decedent is alleged to have been under duress when her will was made
  • A decedent is alleged to have been operating under undue influence when his or her will was made.
  • A will is alleged to be fraudulent.
  • A will was not validly made by decedent.
  • A will was not validly executed by decedent.
  • Alterations to the will were made improperly or incorrectly.
  • A will has been revoked by decedent.
  • A will is not legally effective.
  • There are multiple competing wills, and the version being probated is not the last and most recent one.
  • A will is missing or lost.

Validity of a Will

A will must meet basic legal requirements to be deemed valid. If the legal requirements are not met when the decedent made the will, and the probate process commenced against what might be an invalid will, the probate process is vulnerable to being disputed and contested. In order to timely and otherwise properly contest a will's validity and challenge the probate process, a challenging party must assert his or her claim within six months of the probate court issuing a grant of probate. Always ensure that you understand the probate process specific to your state and to consult with legal counsel in the trusts and estates field before undertaking such matters.