What to do if a will is contested
You've just learned that someone is contesting your loved one's will. Maybe it's a sibling, a stepparent, or a relative you haven't spoken to in years. A letter or court notice has arrived, and you're grieving while also facing a dispute.
So what should you do if a will is contested?
The answer depends partly on where you sit in the dispute, but there are common mistakes worth avoiding and general steps many people find helpful. This guide walks through both.
What Does It Mean When a Will Is Contested?
When a will is contested, someone is asking a court to decide whether the will is valid. It doesn't necessarily mean anyone is accusing your loved one of anything. It means someone believes there is a question the court should look at.
Common reasons people contest a will include:
Lack of capacity. Did the person understand what they were signing, what they owned, and who their family members were?
Undue influence. Was someone pressuring or manipulating them?
Improper signing. Most states have specific rules for how a will must be signed and witnessed. If those rules weren't followed, validity may be questioned.
Fraud or forgery. Was the person misled about what they were signing, or was a signature not genuine?
Notice that these are all questions about facts. Contested probate is generally not about who loved whom more. It's about what happened and whether the law's requirements were met.
Four Mistakes to Avoid in the First Week
Some of the most natural reactions to a will contest can make things harder.
1. Ignoring the notice
It can be tempting to think the dispute will go away, or that it's too much to deal with right now. But court documents often come with deadlines, and missing one can limit your options. Even if you do nothing else this week, make sure you know what dates are attached to the paperwork.
2. Distributing estate property too soon
If you're the executor (also called the personal representative, the person named to manage the estate), family members may pressure you to hand over keys, heirlooms, or money. But once a will is being challenged, distributing property can create serious problems. Executors owe legal duties to the estate, so it's important to understand your obligations before assets are given away or sold.
3. Sending angry messages
Texts, emails, and social media posts written in the heat of grief can end up in front of a judge. A good rule of thumb: assume anything you write about the dispute may be read by someone you didn't intend.
4. Throwing things away
Old letters, medical records, emails, and notes from the last months of your loved one's life may feel like clutter. In a will dispute, they may be evidence. Keep everything.
The Three Seats at the Table
There isn't one universal answer to "what should I do?" because people in a will dispute are usually in one of three very different positions.
The executor
Consider Maria. Her father's will names her as executor and leaves the house to her and her brother equally, with a small gift to a longtime friend. A cousin then files a challenge claiming her father lacked capacity when he signed.
Maria's instinct is to protect her father's wishes. But an executor's role in a contested will is generally not to pick a side in a family argument. It's typically to preserve the estate, keep careful records, follow the court's direction, and pay only what the estate is allowed to pay while the question is being resolved.
There's another wrinkle: sometimes the executor is also a beneficiary. That can create tension between personal interests and legal duties, which is one reason executors in contested estates often benefit from speaking with an attorney early.
The beneficiary
Now consider David. He isn't the executor. He's simply named in the will, and he receives notice that his aunt is challenging it.
"Why do I need to get involved? I didn't do anything." But if the will is set aside, what David receives may change. When someone's interests are affected, they're often given notice so they have the opportunity to be heard.
The person raising the challenge
The third seat carries a different set of considerations altogether. Who is legally allowed to bring a challenge, and how quickly they must do it, depends on state law and the facts. Not everyone who feels wronged has the legal right to contest a will.
What the Will Contest Process Often Looks Like
Every case is different, but a will contest generally moves through a few stages.
1. Filing. Someone formally asks the probate court to review the validity of the will, and interested people are notified.
2. Gathering information. This often involves documents, medical records, and sometimes testimony from people who knew your loved one or were present when the will was signed.
3. Exploring resolution. Many families find that mediation, a structured conversation with a neutral third party, helps resolve disputes without a full trial. Not every case resolves this way, and no one can predict how any specific case will go.
4. A court decision. If the dispute isn't resolved, a judge typically decides. No attorney can honestly guarantee an outcome.
Understanding No-Contest Clauses
Some wills include a no-contest clause. In plain English, it says that if you challenge the will and lose, you could lose what you were otherwise going to receive.
Whether it's enforced depends heavily on the state, and sometimes on the reason for the challenge. Some states enforce these clauses strictly, while others limit them. If you're considering a challenge, or you're a beneficiary who's been told about one, this clause deserves careful attention.
Seven Steps to Consider If a Will Is Contested
In general terms, here's what many people find helpful:
Pause. You don't need to solve this today. Take a breath before responding to anyone.
Read every document and note every deadline. Dates matter, and they vary by state.
Hold off on distributing or selling estate property until you understand what's allowed, especially if you're the executor.
Keep everything. Documents, emails, records, and messages can become important later.
Be careful what you say. Keep communication calm, brief, and factual, and think twice before discussing the dispute in writing or on social media.
Understand your role. Executor, beneficiary, or the person raising the challenge? Responsibilities and options can be very different.
Talk to a probate attorney early. Not because every dispute ends up in a courtroom, but because early information can help you avoid mistakes that are hard to undo.
Frequently Asked Questions
What happens when someone contests a will?
A challenge is typically filed with the probate court, interested people are notified, and the court reviews whether the will is valid. The process can involve gathering information, mediation, and, if necessary, a decision by a judge.
Can an executor distribute assets while a will is being contested?
Often, distributing property during a contest can create problems, and executors owe legal duties to the estate. What's appropriate depends on the facts, the court's direction, and state law, so this is an important question to raise with an attorney.
How long do you have to contest a will?
Deadlines vary by state and circumstances, and they can be shorter than many people expect. Don't assume you have unlimited time.
Who can contest a will?
Generally, a person needs a real legal interest in the outcome, such as someone named in the will, someone named in a prior will, or someone who would inherit if the will were invalid. Feeling left out isn't always enough by itself.
What is a no-contest clause?
It's a provision saying a beneficiary may lose their inheritance if they unsuccessfully challenge the will. Whether it's enforced depends on the state and the circumstances.
Do all will contests go to trial?
No. Many disputes are explored through negotiation or mediation, though every case is different and no outcome can be predicted.
The Bottom Line
If a will is contested, the first steps matter. Pay attention to deadlines, avoid distributing property too quickly, keep your records, be careful with your words, and understand which role you play in the dispute.
Every situation is different. The facts matter, and the law varies from state to state. Only an attorney who understands your specific circumstances can tell you what this means for you.
Talk to a Probate Attorney
Losing someone is hard enough without a legal dispute on top of it. But you don't have to walk through it blindly, and you don't have to do it alone.
If you'd like to understand how the law may apply to your situation, the attorneys at Woodbury & Ybarra offer free consultations. Mention this article to receive your free consultation. Visit www.woodburyandybarra.com or call 801-203-0297 to schedule your consultation today.
This article is for educational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.
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