Executors, Answers To Your Questions About Will Contests
Are you the executor of a will? If so, you have several important legal responsibilities. And if that will is going to be contested, these responsibilities expand. What should you know if you must deal with a will contest? Here are a few answers to your questions.
Do You Have to Defend the Will?
Yes, the executor is generally responsible for leading the defense of the will. This usually involves retaining a probate attorney for the estate. These costs are generally paid from the estate's assets, although you may need to seek a court order to allow the estate to be charged for what are known as "extraordinary costs." The executor can also generally charge additional fees for the extra work of the defense.
Can Someone Else Defend the Will?
As a rule of thumb, anyone with a stake in the will may defend the will in a contest. However, other parties who are not the executor are unlikely to be reimbursed for the legal costs from the estate. They can, though, help the executor defend the will by aiding with upfront legal costs that will eventually be reimbursed to the executor upon a court order.
How Is a Will Defended?
The method by which the executor defends a will depends on the angle being claimed. If the argument is that the will was made under duress, for instance, you might provide written or witness evidence that it does, in fact, reflect the testator's ongoing wishes. The persons who witnessed the will being signed might testify as to the mental state of the person and the circumstances surrounding the signing. Or you might need to have a medical professional with knowledge of the deceased testify about competence.
What Happens If the Will Contest Is Successful?
If the will is contested successfully, the next steps depend on how much of it is thrown out. If only a portion is ruled invalid, the rest of the will may stand and you would continue your role. If the estate reverts to an earlier will, a new executor may be named in that will. And if the court must decide, the judge may either retain you in the executor position or choose a new executor.
Where Should You Start?
Clearly, the contesting of a will can be complicated and requires legal professionals. No matter where you are in the process of dealing with a contest, seek out a probate law attorney in your state as soon as possible. They will work with you to ensure the best defense and help you do what's right for the estate and your loved one's wishes.