Frequently Asked Questions About Estate Disputes and Probate Law

What is a last will and testament?

A last will and testament is a written legal document where a person directs the distributions of their property, assets, and possessions upon their death.

How old do you have to be to make a will?

Anyone who is at least 18 years old and has the mental capacity to execute a will can make a will.

What happens if someone dies without a will?

The term used when someone dies without a will is “intestate.” State laws provide for a succession plan that determines how an estate will be distributed if there is no will. As an example, if the decedent—or the person who passed away—was married with no children, the spouse would receive the entire estate. If the decedent was married with children, the spouse and children will each receive a share of the estate. These laws of succession determine the exact amounts each family member will receive based on their familial status.

What does the term “testator” mean?

A testator is the person who has written and executed a last will and testament to take effect upon their death.

What is probate law?

Probate technically means the “proving of a will.” However, this term has expanded over time to include estates that have a will and those where a will is not present. Therefore, the term “probate” often generally means the legal process of administering a person’s estate after death by resolving all claims, taxes, and costs of administration, and distributing all property—either in accordance with the terms of a will or in accordance with applicable statutes.

How soon after death should an estate be opened?

An estate should be opened as soon after the passing of a loved one as is practical. It’s important for there to be a period of mourning and family adjustment, but resolving and protecting the estate is also very important.

Can executors and administrators handle an estate however they choose?

No. An executor or administrator must follow probate court rules and the laws of the state regarding the administration of an estate. The executor or administrator must also follow the testamentary intent and wishes of the decedent if a will is present.

How do you find out if a loved one’s estate has been opened?

You can call the probate court clerk’s office in the county where your loved one passed away to find out if his or her estate has been opened.

How do you start the probate process?

The probate process begins when a person interested in the estate files a petition in the appropriate probate court requesting that the estate be opened and a personal representative be appointed.

How long does probate take?

It depends on several factors, including jurisdiction—or where the probate takes place. Many states have laws that require an estate be open for a certain period of time after a notice to creditors is given. If all goes smoothly, most estates can be closed any time following this required period. However, if there is any complication in the estate—such as a will contest or a creditor dispute—then the estate will have to remain open for a sufficient period of time to resolve these matters.

What is a notice to creditors?

A notice to creditors is a public announcement made to the creditors of an estate. These notices are typically printed in public newspapers and notify interested parties that they must appear in court to make their claim within a required period of time or be forever barred.

Do all estates have to go through probate court?

It is prudent for all estates to go through probate to ensure that all assets, debts, and taxes are appropriately resolved. However, there are limited circumstances where there are no assets subject to the probate process, and therefore it is unnecessary.

Does all property and assets pass through probate?

No. Only property and assets owned solely by the decedent go through the probate process. Assets such as jointly held property, life insurance proceeds, payable on death bank accounts, and more do not go through the probate process. These assets will pass to a beneficiary according to provisions designated by the testator prior to his or her death.

What is a will contest?

A will contest is essentially a lawsuit brought by a person with legal standing to challenge the validity of a will. A challenge can be brought on numerous grounds. When contesting a will, it’s best to seek professional legal advice from an attorney who concentrates on probate litigation. At Fair Share Lawyers, we have experience handling these types of cases. Contact us today if you need help contesting an unfair, fraudulent, or suspicious will.

What are some reasons why a will may be contested?

Some common reasons wills are contested include disputes arising from:

  • Changes made to a loved one’s last will and testament
  • Transfers of property prior to the death of the loved one
  • Changes to beneficiary designations on life insurance or retirement accounts
  • Co-ownership of inherited property
  • Mismanagement of a probate or trust estate
  • Suspected elder abuse
  • Lack of the testator’s mental capacity
  • Undue influence
  • Fraudulent practices
  • Execution errors

How is a will contest started?

To initiate a will contest, a formal complaint must be filed in the court that has jurisdiction over the administration of the estate.

Where do you have to file a will contest?

The will contest will be tried in the state and county where the will is admitted to probate.

How much does it cost to contest a will?

You must post a bond to contest the validity of a will. There may be court costs, filing fees, and attorney fees. At Fair Share Lawyers, in most cases, we can investigate and prosecute cases on a contingency fee basis. That means you won’t pay any attorney fees unless you win or settle your case.

Who has to prove a will is valid or invalid?

The proponent—or the person who supports the validity of the will—has the burden to prove the will was validly executed. Once it has been proven that the will was properly executed, the person contesting the will has the burden to prove that the will is invalid for some other reason.

Can a will contest be settled without going to court?

Yes. A will contest is like many other civil legal matters and can be settled out of court. The family can come together and agree to resolve the matter before litigation commences or at any time during the trial. Courts in many states encourage family members to resolve their disputes through a family settlement agreement.

What is undue influence?

Undue influence occurs when a dominant party unduly asserts power or influence over a testator. Examples of undue influence include:

  • Abuse of a confidential relationship to obtain a benefit
  • Active involvement of the dominant party in the transaction (Such as hiring the attorney that drafts a new will, contacting the life insurance company to obtain change of beneficiary forms, etc.)
  • Lack of independent advice for the weaker party about the impact and effect of the transaction
  • Fraud and/or duress directed toward the weaker party.

What is a confidential relationship?

A confidential relationship is a relationship of trust between the testator/grantor (the weaker party) and a person who benefits from a transaction such as a newly executed will or transfer of property (the dominant party). This trust is of such an extent that the dominant party has the ability to influence or control the weaker party. An example of a common type of confidential relationship is one where the dominant party is the power of attorney for the weaker party. As the power of attorney, the dominant party abuses this position of confidence for their own benefit.

What are some signs of undue influence?

Every case is unique, but some common factors in cases where undue influence occurs include:

  • Secrecy surrounding the transaction
  • Advanced age of the testator
  • Physical and/or mental deterioration of the testator
  • The testator’s illiteracy or blindness
  • Signs the testator is emotionally troubled or depressed
  • Seclusion of the testator from other family and friends
  • Unjust or unnatural transactions (for example, excluding all family members from a will in favor of a person without strong ties to the testator)
  • Differences between a transaction and statements the testator made to other independent witnesses about how he or she wanted assets divided

What is required to show that a person had the capacity to make a will?

The mental capacity to make a will, also known as testamentary capacity, requires that the testator have an understanding of their property, how it will be distributed, to whom it will be distributed, and the significance of the distribution in general. Alleged lack of capacity is one of the most common reasons why wills or property transfers are contested.

What is lack of capacity?

Lack of mental capacity can be caused by a number of factors and can be demonstrated in different ways depending on the person. Lack of mental capacity can include:

  • Not understanding to whom their property would pass
  • Not knowing or recognizing the people to whom their property would pass
  • A lack of understanding of what he or she owned at the time of the transaction
  • Underlying mental impairments, such as dementia or Alzheimer’s, that would impact their reasoning or understanding
  • Physical impairments that would also contribute to a reduction in their ability to reason or understand
  • Any interactions from drugs (whether prescription or illicit) or alcohol that would reduce their ability to reason or understand
  • Severe emotional distress

What do you look for when determining mental capacity?

We look for evidence regarding the testator’s physical state of health, their age, whether they suffer from mental impairments, and any other evidence that may demonstrate a possible lack of capacity. We are looking for evidence of these impairments as close as possible to the date of the disputed transaction.

How much evidence do you need to claim someone lacked mental capacity or that undue influence occurred?

Strong claims of a lack of capacity or undue influence usually have multiple factors present. Traditionally, there is no single factor that will justify contesting a will, trust, or financial transaction. At Fair Share Lawyers, we strive to find multiple foundations to support a contest claim. We can investigate your particular situation and find out if there are the requisite multiple factors that raise our suspicion about the appropriateness of a transaction.

What does it mean when someone has power of attorney (POA)?

A power of attorney is a fiduciary status, in the form of a legal document, which authorizes one person to make financial, legal, or health care decisions for another.

What is a durable power of attorney?

A durable power of attorney is one that remains in effect even during periods where the person who granted the power of attorney is incapacitated. A non-durable power of attorney is no longer valid if the grantor loses capacity.

Can a power of attorney be abused?

Yes. Someone who holds power of attorney over another is legally required to act in the sole best interest of that person, not themselves. Unfortunately, at Fair Share Lawyers, we often discover that a power of attorney has been abused. Many times, this abuse takes the form of stolen money, transferred property, amended beneficiaries on life insurance policies, and more. Those who abuse their power of attorney not only put themselves at risk of civil lawsuits by heirs, beneficiaries, and the estate, they may also face criminal prosecution.