When a person passes away with a will, that will is submitted to probate. Probate is the process by which the directives in the will are carried out, creditors are paid and property is distributed. In some cases, people may want to contest the will. That means they think the will is invalid for some reason. If you are an interested party and think that the will is invalid, you should contest the will. The process can get very complex, very quickly. Here are the basics of what that process looks like.
Petitioning
From the date the will was admitted to probate, you only have six months to file a contest to the will. You will need to file a petition in the same probate court that the will was submitted. Among other things, you will need to include the deceased’s name, date and place of death along with the corresponding court case number for the probate proceedings. You will also need to explain why you are contesting the validity of the will. Some reasons, or grounds, for contesting a will are:
- Lack of capacity of the person who made the will;
- Undue influence; or
- Fraud.
When filing the petition, you may ask for a jury trial. Even if you do not request a jury trial, the executor of the estate may ask for a jury. If neither party requests a jury trial, the case will likely be heard by a judge.
Once you’ve filed the petition, you are required to notify all individuals entitled to notice. These people will include anyone named in the original probate petition, the executor, and the executor’s attorney. You will need to deliver a copy of the petition to each of those individuals. The rules on how to deliver that notice vary by court and should be done in accordance with local rules.
Who defends the will?
The executor of the will is required by law to defend the will. If that person is unable or unwilling to do so, the court may appoint someone else to do so. Defending the will includes not only defending the validity of the will but also appeal judgments that declare the will invalid.
If you believe a will is invalid or if you are defending a will contest, give us a call at (847) 770-6600.
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