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- A Will is a legal document that is used to express the Testator’s (creator’s) wishes regarding his/her estate assets and what should be done with them upon the Testator’s death. Gifts made in a Will may be general or specific. Along with making gifts of estate assets, a Will offers the parent of a minor child the only official opportunity available to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed. Your Last Will and Testament also allows you to decide who will oversee the administration of your estate when you appoint an Executor.
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Shortly after learning of your death, the person you appointed as Executor in your Will should initiate the probate of your estate. Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed.
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To contest a Will a contestant must have “standing,” meaning the legal right to bring the Will contest. Only an “interested” person (or entity) has standing in a Will contest. That typically means a legal heir of the estate, a beneficiary under the current Will or under a previous Will, or in some cases even a creditor of the estate.
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Moreover, like many states, Indiana allows a spouse to “take against the Will.” With some exceptions, this entitles a spouse to one-half of the net personal and real estate unless the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent and the decedent left surviving children or descendants. In that case, a surviving spouse is still entitled to take against the Will; however, he/she is entitled to less than half of the estate.
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Generally, Indiana law requires a Will contest to be filed within three months of the date the probate court issues an order admitting the Will for probate.
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- For a Will contest to move forward in court the contestant must allege (and ultimately prove to win) one of the limited legal grounds on which a Will can be invalidated in Indiana, including:
- Improper Execution. Certain procedures must be followed at the time of execution of a Will for it to be valid. If those procedures were not followed, the Will could be invalid. In Indiana, the Testator must have been at least 18 years old, and must have properly signed the document in the presence of witnesses.
- Lack of Testamentary Capacity. Alleges that the Testator lacked the ability to understand the value or nature of the assets involved, failed to recognize who should receive those assets, and did not understand the ramifications of creating the Will.
- Undue Influence. Alleges that the Testator was being controlled by another person or influenced by someone to the point that the decisions made in the Will were not their own.
- This refers to someone tricking the Testator into signing the Will.
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Once I Will contest is initiated the probate process effectively slows to a crawl because the validity of the Will must be determined before moving forward. That requires litigating the issue of the Will’s validity. If the contestant is successful, the Will is invalidated, and the court will look for another valid Will or move forward using the state intestate succession laws. If the contestant is not successful, the Will is validated and used to distribute the estate.
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Although there is no sure fire way to prevent someone from contesting your Will, there are things you can do to discourage a Will contest. Including a Letter of Instruction in your estate plan that explains why you made gifts that are likely to be controversial is one thing you can do. You may also decide to include a “no contest” clause in your Will. A no contest provision effectively disinherits anyone who tries to contest your Will.
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Contact Us
If you have additional questions or concerns about contesting a Will or about preventing people from contesting your Will, contact an experienced Indianapolis, Indiana estate planning attorney at Frank & Kraft. by calling (317) 684-1100 to schedule your appointment today.
