When a family member passes away, the time period that follows is one filled with grief and a variety of other strong emotions. There are also a number of practical and legal steps that must be taken following a death. Among the most important of those is probating the decedent’s estate which begins with submitting the decedent’s Last Will and Testament to the appropriate court. The terms of that Will provide a roadmap for the distribution of the decedent’s assets. What happens, however, if someone contests the Will? To give you some idea what to expect if you find yourself involved in a Will contest, the Carmel probate attorneys at Frank & Kraft explain what happens after someone files a Will contest in Indiana.
A Primer on Probate
If you have never before been through the probate of an estate, it may help to begin with some probate basics. Probate is the legal term used to refer to the process of administering an estate following the death of an individual. Probate is intended to serve several important functions, including:
- Authenticating the decedent’s Last Will and Testament (if one was located)
- Identifying, locating an valuing all estate assets
- Allowing creditors of the estate to file claims against the estate
- Ensuring that federal and/or state gift and estate taxes are paid
- Transferring the remaining assets to the intended beneficiaries and/or legal heirs of the estate
If the decedent left behind a Will the individual named as the Executor in that document is responsible for overseeing the probate process and the terms of that Will dictate how the estate assets are distributed. If the decedent died without a Will , or “intestate,” someone must be appointed as the Personal Representative to oversee the probate process and the Indiana intestate succession laws determine how the estate assets are distributed.
The first step in the probate process is to submit the original Last Will and Testament to the appropriate probate court for authentication. The court then “probates” the Will which essentially means that the court determines the documents meets Indiana’s requirements for signing a Will. From that point, anyone who wishes to contest the validity of the Will only has three months to initiate a Will contest.
Contesting a Will
A Will contest challenges the legality of the Will submitted for probate. It is not a forum for a disgruntled heir to complain about his/her inheritance (or lack thereof). To contest a Will, the contestant must allege (and ultimately prove) one of the following grounds for invalidating a Will in Indiana:
- Improper Execution
- Lack of Testamentary Capacity
- Undue Influence
- Fraud
The contestant must file a leading with the probate court setting forth the grounds on which he/she is claiming the Will is invalid. The Executor is responsible for defending the Will submitted for probate. If the Executor has not already retained an attorney, now is the time to do so as defending a Will contest is a complex and difficult task, the outcome of which is critical to everyone involved.
After the contestant initiates the Will contest, the litigation that follows is similar to other civil litigation. Both sides will engage in “discovery” which involves the sharing of pertinent information and evidence. If the court believes that mediation might help the parties reach an out of court resolution, it might be suggested or even ordered. If a settlement is reached, the terms of that settlement will be submitted to the court for approval. If an out of court settlement cannot be reached, the case will go the trial. If the challenger prevails at trial, the Will submitted for probate will be declared invalid. The court will then look for another valid Will (such as a prior Will). If no valid Will is uncovered, the estate assets will be distributed according to the Indiana intestate succession laws. If, however, the contestant does not prevail, the Will is declared to be valid and the terms of that Will are used to distribute the estate assets.
Contact Carmel Probate Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about the process of contesting a Last Will and Testament in Indiana, contact the experienced Carmel probate attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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