One of the most important ways to prepare for the future is to create a last will and testament to distribute your estate to your loved ones after your death. If your will executor works efficiently with a team of professionals, the beneficiaries of your will usually receive their inheritance quickly and can continue with their personal lives.
Administrating an estate goes smoothly as long as all parties agree to the terms of the will. Unfortunately, sometimes heirs feel that they have been “cheated” if their inheritance is less than an amount they expected to receive or if the deceased excluded them from the will completely. If an heir feels strongly that they are entitled to a larger share, they may choose to contest the will.
Will contests create additional stress during a time that is already emotional. When someone contests a will, the assets of the estate will likely be frozen until the contest is complete. This means that the beneficiaries cannot receive any of their inheritance until the will contest is resolved.
If you suspect your will might be contested, there are ways to prepare for potential conflict. Firmly communicate your intentions for your estate, clarify the terms of your will with an experienced attorney, and select an executor who is comfortable with the legal process.
Even if your estate plan seems fool proof, your executor may end up facing unexpected conflict after your death. In this case, the executor may choose to probate the will in solemn form rather than common form. (More on these forms of probate below). To prepare for this possibility, bring the executor of your will with you to your estate planning meetings with your attorney, accountant, and/or financial advisor. The more your executor understands your estate and the legal process, the better prepared they will be to handle the legalities of a will contest.
Who Can Contest a Will?
Immediate family members are the most common party to contest a will, but anyone who qualifies as an interested party can contest a will, even if that person was excluded from the will completely. Natural heirs or other beneficiaries may also contest the will if they believe they are entitled to a larger portion or equal share of the estate.
Grounds for Contesting a Will
It would be impractical to brainstorm all the reasons why an heir or interested party might be unhappy with the outcome of a will, but usually the conflict presents itself before the testator's (maker of the will) death, giving more time for the executor to prepare. The person contesting the will might truly feel that they deserve a larger inheritance than what they received, or a person might contest the will's validity as an emotional response to the terms of the will.
If you anticipate conflict over the terms of your will, consider the following factors that would allow an heir to contest the will:
- The person signing the will did not understand what he or she was signing at the time that the will was signed.
- A third party wrongly influenced the person executing the will into giving assets to certain persons; or
- The will was executed incorrectly or improperly, such as if the will was not signed by two uninterested parties, or if the testator's signature was forged.
By far, the most common of these grounds for a will contest is undue influence. Here's why: It is very common for a parent to heavily depend on a child to take care of them in old age. That parent may greatly appreciate the child's help, but does not want to change his or her will. However, over time, dementia, Alzheimer's disease, or even heavy medication sets in and the child may have an easier time convincing the parent to make them the primary beneficiary of the will.
Make no mistake, contesting a will is time consuming and expensive. Will contests tear families apart and create lasting animosity. The best way to avoid against such a contest is to make sure you are transparent and clear about your wishes after you are gone. Speak with your estate planning team and make sure they know your plan.
Avoiding a Will Contest Through Probate
If conflict arises after the testator's, it is now the executor's role to protect the validity of the will. The executor's responsibilities include determining the best way to proceed with probate. In Tennessee, there are two ways to probate an estate: common form and solemn form.
Probate a Will in Common Form
Probating an estate in common form is by far the most popular form of probate. Tennessee law requires the executor to prepare legal documents for probate, but for probate in common form, the executor is not required to legally serve the heirs and beneficiaries with those documents. The executor is required to send the documents to the heirs and beneficiaries, but the law does not require those heirs and beneficiaries to be served with them.
If the executor chooses to probate in common form, heirs and beneficiaries of the estate have two (2) years to contest the will. If an heir or beneficiary chooses to contest the will, they do not have to give prior notice before court, but they must file their contest within that time limit. Otherwise, their right to contest the will expires after the two year statute of limitation.
Probate a Will in Solemn Form
If the executor chooses to probate the will in solemn form, the executor must serve the heirs and beneficiaries of the estate with a copy of the petition and the will. If the heirs choose not to file a response to the petition within thirty (30) days of service, then they lose the right to contest the will.
Many times, heirs and beneficiaries of wills will delay in filing a will contest because they are not sure of the legitimacy of their cause. Probating a will in solemn form is a great way of forcing those who may desire to contest the will to take action now. If they fail to file a contest within thirty days of service, they will be barred forever from doing so.
Be clear about your plans after you die. Let your family and estate planning team know what you want to happen. If a family member does decide to contest your will, know that there are ways that your executor can force their hand quickly. By probating in solemn form you force those that have a intent to contest to do so immediately. If they balk at filing a contest, they will be prohibited from taking any further action in the future.