What to do if you are not in the will?

Posted by iLawyer on Dec 19th, 2019 Firm News, Probate

Parents will often have a difficult time discussing the details of their will, trust or estate plan. So it may be a few words along the lines of, “you and your brother will split everything after your mother dies.”

That is often all the information that a family member gets unless they are the trustee. Once the death occurs, a son may find out that they received a few photos or mementos, but the majority of the assets went to a second wife or other family members.

Adding insult to injury

The potential beneficiary is now going through a grieving process and then suddenly they find out that the love they enjoyed did not come with a final gift. It may even be a case where they were told that they were in the will but subsequently find that this is not the case.

It’s best to act quickly

If you expected to be in the will and expected to have a financial stake in the estate, there are some critical time-sensitive steps to take to contest it. While it may mean litigation or lawsuits, at the very least, it can provide closure. Actions to consider include:

  • Get a copy of the will: It is essential to determine if there was tampering of the document or changes made under duress. Ask the executor for a copy, any previous versions of the will as well as a list of assets.
  • Discuss options with a lawyer: If you didn’t use an attorney to obtain a copy of the will, it is now time to discuss the case, your motivation for disputing the will and potential outcomes.
  • Judge the cost of contesting the will: Setting emotions aside for a moment, you and the attorney should discuss the likely financial cost of contesting the will. Also, look at the emotional impact that this kind of legal action can have on you or others.
  • File a contest: Four categories for doing this are lack of testamentary capacity, undue influence, due execution (requirements typically include a witness and a signature), or legal noncompliance (not executing its mandate).
  • Mediation is an option: Keeping the dispute out of court can save a lot of money. Plus, mediation may be the best option if the dispute involves family — it often is a less confrontational way to resolve a dispute.

Legal assistance minimizes the pain and frustration

The testator has every right to draft a will as they see fit as long as it follows the laws, but it is wise to speak with an attorney early in the process who has experience handling estate law disputes and litigation. These legal professionals can provide valuable insights on how to address the conflict and whether litigation is the best option.