Probate is a term most people have heard. It’s the court process required to settle an estate when a Will was used as the estate planning tool. What most people don’t know is that there are two types of probate—Common and Solemn. The executor chooses the one that is most appropriate.
Common probate is used most often. It’s the easiest. The executor can settle the estate with no one else involved. There’s no requirement to notifying any heirs, beneficiaries, or creditors of the estate. The executor works directly with the probate court. And usually, there’s no problem. But if the Will falls into the three percent that is contested every year, then probate can become a lengthy process.
The statute of limitations for contesting a Will under common probate varies from state to state. It might be a few months to a few years. Or, in the case of minors, they may have 2 to 4 years to contest, after they reach legal age.
But if you think the Will may be contested, solemn probate is a consideration. The primary benefit of the petition to probate the Will in solemn form is that it is final and binding immediately for all heirs served with notice of the proceeding. This is not the case with the petition to probate a Will in common form, where heirs are allowed to object to the petition or the proposed will within a short window of time. If there is no objection during that window of time the objection is then lost. This allows the executor and beneficiaries to be certain that an heir who is unhappy with the outcome cannot seek to have the will declared invalid after the estate has been settled. For this reason, this petition is an attractive choice for many probate cases.
Contesting a will simply means that you formally object to the terms and validity of the will. Any interested party can contest a will. The definition of interested party is fairly broad. It means any person or business who could stand to gain (or lose) something if the will is successfully proven to be invalid. That includes people who may or may not be named in the will, as well as people who can inherit from you according to the inheritance laws in your state. Generally, interested persons may include:
- Children and/or grandchildren
- Aunts and uncles
- Business partners
- Anyone named as your heir or beneficiary, including friends, non-blood relations or charitable organizations you pledge to leave money to.
In the case of children, minors usually can’t contest the terms of a will until they’re legally adults. But an executor or guardian could challenge a will’s validity on their behalf if they’re underage.
There are a number of reasons why a will may be legally contested during the probate process. Some of the most common grounds for challenging a will include:
- Questions about the mental state of the Willmaker
- Claims of undue influence
- Suspected fraud or forgery
- Improper preparation or execution
- Discovery of a newer Will
Every state has different guidelines with regard to all of the things mentioned above. But generally, for a Will to be considered legally valid, it must be:
- Drafted by someone who is of legal adult age and of sound mind, meaning they’re mentally competent to create a legal will
- Free of any outside interference or manipulation from someone who takes a financial interest in the will
- Drafted in accordance with the Willmaker’s state laws regarding wills
- Properly signed, witnessed and recorded or notarized if required by state law
In other words, someone who’s mentally ill or incapacitated wouldn’t meet the legal standard to create a will, nor would someone who was forced into it. A will that isn’t signed and witnessed could also be open to challenge, as could a holographic or handwritten will.
Beneficiaries who challenge a Will risk receiving nothing, or a reduced inheritance if there is a no-contest clause in the Will. A no-contest clause typically disinherits anyone who challenges the Will. However, if the beneficiary is acting in good faith with evidence that a reasonable person would conclude should lead to contesting the validity of the Will, the beneficiary’s share won’t be adversely affected.
Also, if the court action is to enforce their rights under the Will or against an executor who is not administering the estate in good faith, the beneficiary’s rights aren’t at risk under the no-contest clause.
If the challenge is successful, the probate court may disregard parts of the Will that were challenged or use an earlier Will. If an earlier Will was not made, the estate will be settled as if the decedent died without a Will.
Solemn versus Common Probate. There’s more to consider than just how quickly an estate can be settled.
This article is presented as information only and should not be considered as legal advice.