Dealing with the emotional impact of a loved one’s death is never easy. Sometimes, however, dealing with the practical and legal ramifications of a death can be just as difficult. For example, making the decision to contest the Will of a recently deceased loved one is not an easy one to make for most people. To help you make the right choice, a Vero Beach probate attorney at Kulas & Crawford discusses factors to consider before deciding to contest a Will.
Probate Basics
When an individual passes away, the law requires the assets that make up the decedent’s estate to be accounted for and ultimately passed down to the intended beneficiaries or heirs of the estate. Before assets are transferred out of the estate, however, debts of the estate – including gift and estate taxes — must be paid. All of this occurs during the probate process. One of the first steps in the probate process, however, is the authentication of the decedent’s Will, if one is submitted to the court. It is at this point that you should contest the Will if you decide to do so.
What Is Involved in a Will Contest – and Is It Worth the Cost?
Because every estate is unique, it is imperative that you discuss your legal options with an experienced probate attorney before making a decision regarding the wisdom of contesting a Will that has been submitted for probate. It may, however, be helpful to get an idea of the factors worth considering when making the decision.
Among the most important factors is whether or not you have legal grounds on which to base a Will contest. You cannot challenge a Will simply because you are unhappy with the terms of that Will. Instead, you must ultimately prove an acceptable legal ground on which the Will can be declared invalid. In Florida, the grounds available to contest a Will are:
- Lack of proper formalities – this refers to an improperly executed Will. For example, if there were no witnesses to the signing of the Will.
- Lack of testamentary capacity – this refers to a claim that the Testator lacked the necessary mental competency to make a will, meaning that he/she did not understand the nature of his or her assets and the people to whom the assets were going to be distributed.
- Undue influence – refers to a situation where a Testator is compelled or coerced to execute a Will by applying improper pressure or persuasion. Usually, this is done by someone in a position of trust close to the Testator, such as a family member, caregiver, or even healthcare worker.
- Insane delusion – refers to a situation when a Testator, against all evidence to the contrary, believes something that is not true, and creates or changes an estate planning document, in this case a Will, based on the insane delusion.
- Fraud – refers to a situation wherein someone causes the Testator to make or change a Will based on misrepresentations.
Given the financial and emotional cost involved in contesting a Will, you should consult with an attorney and be reasonably certain that you have a good chance of being able to prove one of these grounds before deciding to move forward.
Another important consideration is the existence or absence of a “no contest clause” which is formally referred to as an “in terrorem clause.” A no contest cause works by forfeiting the inheritance of a beneficiary if that beneficiary contests a Will. States differ as to the enforceability of no contest clauses. Section 732.517 of the Florida Statutes is very clear about how a no contest clause is to be treated, stating “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Therefore, if the Will is being probated in the State of Florida, you do not need to worry about the existence of a no contest clause; however, most other states will enforce a no contest clause under certain conditions.
Contact a Vero Beach Probate Attorney
To learn more, please join us for an upcoming FREE seminar. If you have additional questions or concerns about contesting a Will, please contact an experienced Vero Beach probate attorney at Kulas & Crawford by calling (772) 398-0720 to schedule a consultation.
