Frequently Asked Questions
Who can legally contest a will?
A will can't be contested by just anyone. Typically, only an "interested party" can challenge a will — and only for valid reasons. There are three types of people who may have standing to contest:
Beneficiaries of a Previous Will
Beneficiaries of a Subsequent Will
Intestate Heirs
You have standing to challenge a will if you were named in the will (or a previous will), or if you were not named but would have inherited had the will been deemed invalid. In simple terms: you can only contest a will if you were named, should have been named, or can show you would have received something if the decedent had died without a will (intestate).
Heirs who would inherit under intestate succession laws — generally spouses, children, parents, siblings, and grandparents — may challenge a will when they believe they were unfairly excluded or received a disproportionate share. For example, if a will excluded an adopted child or only named three of four children, those left out may have valid grounds.
When someone wants to disinherit an heir, they often use a "no contest" clause. However, these clauses are usually not enforceable in most states.
What if someone objects to the will?
If someone contests a will, it begins an often expensive and time-consuming legal process that may last months or years.
During a will contest, the person challenging the will must show they have grounds and prove those grounds through testimony and evidence. The probate court will ultimately decide if the contest is successful — although many will contests settle before reaching that point.
A will contest can significantly delay the distribution of the estate's assets and increase costs for all parties involved. Consulting with a probate attorney early is strongly recommended.
What is the basis for contesting a will?
There are two hurdles for a will to be contested: the individual must have standing to challenge the will, and they must have a valid legal basis. In most states, there are just four recognized grounds for contesting a will — and all are fairly difficult to prove:
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1
Improper Execution The will was not signed according to state law. This is one of the most common reasons a will is found invalid.
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2
Lack of Testamentary Capacity The testator did not understand the nature and value of their assets or the legal consequences of signing the will at the time of signing.
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3
Undue Influence The will is not valid if the testator faced severe distress, extreme pressure, threats, or other forms of undue influence to sign it.
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4
Fraud or Forgery The testator was tricked into signing the will, or the will itself was forged.
How can a will be legally contested?
In most states, there is a limited time to legally contest a will. This time limit begins when someone receives the notice of probate.
A claim must be filed with the probate court in the county in which the decedent died. Depending on the state, contesting the will may require a deposition, submitting evidence during a discovery phase, and giving testimony to the court.
Do not delay. The window to file a will contest is strictly time-limited from the date probate notice is received. Missing this deadline can permanently forfeit your right to challenge.
How can I find out if there is a will?
It can be difficult to determine if a decedent had a will if they did not inform the correct people. Hopefully, the person designated as executor was informed about the will and its location. In some cases, family members find the will first.
In most states, the person who locates the will has a legal duty to submit it to the probate court within days of locating it.
If the executor wasn't informed of the will, the next step is to look for the attorney who may have drafted it. Old bank statements or knowledge of which law firm the decedent used can be helpful.
Immediate family members can also get permission to look in secure areas — like a safety deposit box — to search for a will, without removing contents.
Most people who create a will keep it somewhere they expect to be found: with other important documents, in a safe, or in a bank safety deposit box.
How can I avoid probate?
There are many ways to avoid probate entirely. A living trust is one of the most comprehensive options — it holds legal title to certain types of property until the time of death. A trust is a separate legal entity that survives beyond its creator, and property held within it passes directly to beneficiaries according to the trust documents — bypassing probate completely.
Certain assets can also be passed to beneficiaries without probate:
- Bank accounts — Can be designated as Payable on Death (POD) to immediately transfer assets to a named beneficiary.
- Cars and boats — Can be passed on by designating a beneficiary with a Transfer on Death (TOD) title.
- Real estate — Certain types of ownership (joint tenancy with right of survivorship, transfer-on-death deed, community property) bypass probate automatically.
- Living trust — Property held by a trust passes directly to heirs or beneficiaries without going through probate court.
Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It's provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.