It's a terrible feeling to lose someone you love. It's an even worse feeling when you discover that you were accidentally (or worse, intentionally) left out of a loved one's will. Wills can very often exclude people who thought they should have been included. If you are ever left out of a will, and have a very strong reason to believe that you should not have been, there are some time-sensitive steps that need to be taken.
Below are the five main items to be aware of, but of course when it doubt always consult a licensed attorney to handle the legal process for you. For more information on wills as they relate to the estate planning process, be sure to visit Investopedia for more.
1. Determine How Much the Process Will Cost You
And not just the financial costs, but the damage you could potentially do to the rest of the family and friends of the person who passed away. If you are NOT a family member and were never named in a previous version of the will, odds are you won't stand a chance in court. However, if the testator (the person to whom the will belongs) actually discussed the possibility of naming you an heir in a previous discussion, document as much information about this as possible. Within this, you should have a specific dollar amount or specific assets (like a car or painting) in mind that the testator discussed giving you. If the discussion never happened, but was implied, you will need to give a high/low estimate on what you could have reasonably received. Then, if this amount isn't enough to cover the consultation and or retainer of an attorney, then walk away. In the end you won't gain anything and the only thing you'll do is cause yourself and loved ones of the deceased even more pain.
2. Obtain a Copy of the Will
Once you've determined that you can move ahead from the first step, the next step is to ask the executor of the estate for a current copy of the deceased's will. Anyone who creates a will has the final say on its contents, and if you think the will was potentially changed either under duress, due to mental incapacity on the part of the deceased, or was fraudulently changed, you are tasked with finding out how and why. Good executors will have all copies of the will to compare in order to note significant changes. If you are not told before the will enters probate, you will be able to get a copy from the probate court. You will also be told how long you have to contest the will. The timelines differ based on the state, so the sooner you get a lawyer to help you, the better.
3. Get a Lawyer
In step one, you should have calculated the cost of hiring a lawyer to help you. Now its time to pay for one. Show the lawyer copies of the will and your reason for filing a legal challenge. To contest the will, you need to have a valid reason. You need to reasonably prove the testator lacked the mental capacity to understand what was going on when the current will was signed, was pressured into changing it or that the will failed to meet state regulations and is thus is not legal. On these grounds, the lawyer should be able to tell if the case is even winnable. Sometimes though, you can make a claim on the estate even if you don't have grounds, such as unpaid work that you can claim costs for from the gross estate. But again, consider the value of the claim versus what it will cost to get you there.
4. File a Contest Against the Will
Here is where the burden of proof will fall on you, so be prepared for a tough fight ahead. If the lawyer determines you have grounds for a claim, they will file a contest against the will. The goal of this legal proceeding is to invalidate the current will and enforce a previous will that lists you as a beneficiary. If you have been left out of several revisions of the will, the chances of you winning becomes slimmer because multiple wills must be invalidated.
5. Consider Mediation in lieu of Court
It's always wise to avoid court whenever possible, and rather than fighting it out, you can have your lawyer work through mediation to reach a potential settlement. It should also be noted that this is a MUCH faster process than going through the courts, which could take months or even years.
In the end, if you are left out of a will, painful as it may be, you will face a massive uphill battle to get your way. Always weigh the potential gains against the costs, and if the costs are more or roughly the same, then it best to walk away. You need to have proof of coercion, mental incapacity or outright fraud in order to win in court and that is a huge challenge especially when the burden is on you.
Additionally, consider the emotional toll: being left out of a will is terrible but wasting time, money, emotions, and hurt other people in a losing battle will be much worse for you and everyone else. Think hard before making a decision.
You can read the original article from Investopedia by CLICKING HERE.
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