While it doesn’t happen in real life as often as it does in the movies and on soap operas, Marietta GA wills and trusts lawyers do sometimes have to deal with a contested will. Wills and trusts are created in order to ensure that a deceased’s wishes are followed, as well as for the financial benefit of heirs. Additionally, they are often used to protect minor children or those with special needs.
When a will is contested, it’s usually by someone who feels that property left to the will or trust was not bequeathed appropriately. In the case of children, someone may feel he or she is a better-suited guardian than the one a parent named. It’s up to the Marietta wills and trusts lawyer to help ensure that the decedent’s wishes are carried out. This may boil down to refuting claims made by others, but the most important job is to set the will or trust up properly to begin with.
When Can Someone Contest a Will?
There are several reasons that a will can be legitimately contested:
- The decedent didn’t understand the choices he or she was making
- There is a mistake in the will
- It wasn’t properly executed (witnessed, etc.)
- The decent was unduly pressured by someone else
Contesting a will is not easy. Wills and trusts lawyers in Marietta and Cobb County do everything they can to make sure their client’s wishes are outlined according to the letter of the law in order to avoid just such a scenario. It’s also possible for a testator (the person making the will) to include a no-contest clause. The clause clearly indicates that anyone who contests the will forfeits their inheritance. This isn’t a 100% guarantee that no one will contest it, but it does offer some incentive to better follow your wishes. A Marietta Georgia wills and trusts lawyer can work with you to determine if this kind of clause might be beneficial.
When Can Someone Not Contest a Will?
There are reasons to contest a will, but “I don’t like what it says” is not one of them. An individual isn’t allowed to simply drag everyone into court to change a will because he or she isn’t happy with the way the property has been distributed. So, if your sister thinks she should have gotten your mother’s ring, but you left it to your daughter, the sister doesn’t have grounds to contest the will. Additionally, only someone with a direct financial interest is allowed to contest it. That means that a son-in-law cannot contest a will because he thinks his wife was treated unfairly.
Avoiding the Issue Altogether
The best approach, of course, is to work with an experienced Marietta wills and trusts lawyer who can set things up properly from the very beginning. The estate plan should be comprehensive and not leave room for ambiguity to be exploited later. Likewise, the attorney will make sure that each aspect of the process complies with applicable laws. As for the testator, there are things he or she can do to reduce the likelihood of a will being contested, one of the most important of which is to share what the will says and what your reasons are with beneficiaries before you pass away. This leads to less surprises later and also provides a better understanding of the decisions you have made.
Probate lawyers in Marietta GA work with their clients to put together plans that clearly explain what the client wants. At least, that’s the hope. When it comes to the administration of a will, however, there are several instances where a will is contested, often by an adult child of the decedent.
One of the biggest problems that leads to a will being contested has to do with communication within the family. This can relate to parents not communicating their wishes to their children and relying on a will to do it for them, or to siblings not communicating with one another during the will administration so that everyone has a different perspective on what is going on.
There are several reasons a will can be contested, and there are also ways that our Cobb County Georgia probate lawyers help families and individuals proactively avoid the expense and drama.
Unequal Distribution Among Beneficiaries
When one sibling receives less than another (either in reality or in perception), it can trigger a desire to contest the will. Really, though, there are plenty of good reasons for an unequal distribution. Perhaps one child acted as the parent’s caretaker, and a bigger portion of the estate is being left to him or her as compensation. Sometimes a business is left to one or more siblings, with a larger portion of the personal estate left to another. It’s almost impossible to make these things “even,” and some siblings may choose to squabble about it.
In many cases, these issues can be avoided or mitigated by making sure to explain in the will the reason for decisions that are being made. That way, not only is there an explanation that can help stop a will from being contested, there is also recourse for the courts to rule in favor of the original intentions.
A commonly-cited reason for stopping the will administration process by contesting the will is “diminished capacity.” In these cases, someone with a stake in the outcome of the will tells the courts that he or she believes that the deceased wasn’t capable of making good decisions due to some sort of mental impairment. Even if you are perfectly reasonable and sound at the time that you make changes to your will, that doesn’t mean that someone can’t come back after your death and suggest that you weren’t.
In order to help discourage this from happening during the Cobb County probate court process, it may be helpful to put your reasons for changes directly into the will. Again, this comes back to communication. If you communicate why you are making changes by writing it into the will, you can help avoid some major issues. Additionally, you may even wish to have your doctor evaluate you at the time to ensure that you are not suffering from diminished capacity.
Disinheritance of one beneficiary can certainly trigger a lawsuit against the estate. While you may have perfectly good reasons for the disinheritance, that doesn’t mean that the disinherited person will agree. Sometimes just contesting the will on these grounds is enough to get the other heirs to provide a financial settlement in order to avoid a drawn-out and expensive court process.
As mentioned above, communication is key. Describe in the will why you have made the decisions you have regarding disinheriting someone. Cover your bases when it comes to diminished capacity by speaking with your doctor. You may also want to discuss your decision with a third party (perhaps your attorney) who will be able to bring that understanding to the situation when it comes time for the actual will administration.
Despite the best efforts of wills and trusts lawyers in Cobb County, Georgia, there are times when a will is challenged. There can be many reasons why this happens, and it is up to the courts to determine what is appropriate in these situations. Some of these include:
- The will wasn’t signed
- The person creating the will didn’t have the capacity to legally sign the will
- He or she was unduly influenced into signing it
- The will is fraudulent
- The person challenging the will feels that a different personal representative should be chosen
None of these reasons for challenging (or contesting) a will is to be taken lightly. In order to prove that the will is invalid, one of these reasons needs to be proven in a court of law. The idea of simply challenging a will because you don’t like the contents may seem reasonable; but if you can’t prove one of the above factors for invalidating it, you may very well be wasting your time and resources.
Cobb County Wills and Trusts Lawyers
If you do wish to challenge a will, you will want to take your concerns to a lawyer who has experience in Georgia wills and trusts administration. He or she will give you some insight into whether or not you have a case. Be sure to choose a reputable attorney, so that you don’t end up wasting your money on a no-win case.
The lawyer will help you determine if you are a person with “standing.” That means that you need to be someone who actually has a financial stake in the outcome of the will. Someone in that position would include a child who stands to receive considerably less than siblings (or who has been cut out altogether), a potential beneficiary who believes too much of the estate has been given to a third party (such as a charity), or someone who was included in an earlier will but finds that the new will treats him or her much more unfavorably.
Challenging the Will
In order to challenge a will, the person in question needs to file the contest with the Cobb County probate court, and there is a set time limit for doing so. Because estate law changes frequently, you should consult a Cobb County wills and trusts lawyer to be sure of what the current timeframe is. He or she will help you decide if you want to pursue the case and to file the appropriate paperwork with the courts.
After reviewing the will, the courts will determine if all or part of it should be considered invalid. If the whole document is found invalid, then the estate will be distributed according to the laws of Georgia probate, unless there is an earlier version of the will that the court finds to be valid. Keep in mind that these may not actually be more favorable than the original contents of the will and will take a considerable amount of money from the overall estate before it is dispersed.
Contact A Cobb County Will and Trust Attorney
If you have questions about how to contest a will in the greater Atlanta area, please feel free to contact our Cobb County will, trust and probate attorneys at 770-425-6060 to schedule a Georgia Family Treasures Planning Session at no charge with the mention of this article.
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