last will and testament

“You are still mourning the loss of a loved one and you just learned that you were cut out of the will. What should you do?”

First, know that this happens quite a bit. A Forbes article, “5 Things You Should Know About Contesting A Will” says that disgruntled heirs frequently want revenge and their day in court. If you’re one of them, here is what you need to know:

  1. Litigation is expensive. Many people will ask if an attorney will take the case on a contingency fee basis—typically a third of what you receive, and he or she only gets paid if you do. Most probate attorneys won’t take a will contest on a contingency fee because there’s a risk they won’t get paid. If you decide to go this route, be certain to use an experienced estate planning attorney.
  2. Have lots of antacids on hand. You’re gonna need them. It’s a rough journey, one that can be full of lies, misrepresentations, and accusations. There may also be a counter lawsuit against you. You’ll probably be interviewed in a deposition, where the opposing lawyer will ask you questions about the case. You may be portrayed as greedy, and you might have to testify in court.
  3. Snap decisions are required. Once you hire your attorney, he or she will work with you to develop a strategy for the case. Your attorney may recommend that you file suit immediately and be the first one into the courthouse. On the other hand, your counsel may think it best to send a letter to the attorney representing the person you’re suing with a request for information. Depending the response, you may decide to file suit. In most cases, you’ll have a limited time to contest the will. If you don’t do so within that time period, you can’t bring a lawsuit. Talk to an experienced attorney soon after the death.
  4. You’ll probably reach a settlement. Once the litigation has begun, and the attorneys have had time to exchange information and do some fact finding (in a process known as discovery), your attorney will talk to you about the strengths and weaknesses of your case. It may be appropriate at that time for one side to present the other with a settlement offer. This would end the litigation without the time and expense of a trial. This may be a wise option if you’re tired of fighting and are willing to consider a settlement. Your attorney may also point out weaknesses in your case and advise you to be happy with getting a settlement, so you can move on with your life. You should approach the settlement like a business decision and try to keep emotions out of it.
  5. It’s emotional. You may get some closure from the legal process and perhaps some money, but the emotional scars won’t be healed by the litigation. You don’t get your loved one back, and you can’t mend the relationships.

Reference: Forbes (May 21, 2018) “5 Things You Should Know About Contesting A Will

For more information on elder law and estate planning, please visit my estate planning website.

Mr. Amoruso concentrates his practice on Elder Law, Comprehensive Estate Planning, Asset Preservation, Estate Administration and Guardianship.