When a person dies, he usually leaves a will, which ideally is executed without problems. Sometimes, however, it is necessary to dispute a will or the way an executor is handling the deceased's estate. Both types of disputes must go through the probate court and should be completed with the help of a probate attorney. They also both require you to provide sufficient evidence for your assertions, as courts will not make decisions about property ownership and distribution based on opinions or hearsay. Going through this process may take several months, depending on how soon the court can schedule a hearing for you.
Things You'll Need
- Documentation showing invalidity of will or improper action of executor
- Probate contest forms
Hire an attorney familiar with probate law.
Check the time limits for contesting the will and challenging the executor. In most cases, wills may be submitted for up to four years following a death. Once the will is submitted to probate, you usually have two more years to contest it. You usually can challenge an executor as long as they are working on the estate.
Collect evidence that the will is not valid or cannot be put through probate, or that the executor is not fulfilling his fiduciary duties to the deceased. Examples of reasons for contesting a will include a lack of sound judgment on the part of the deceased, which refers to testamentary capacity, and coercion, which refers to fraud in the inducement. You also may contest a will if you can prove another later will exists, that the will was forged or improperly signed or that it has mistakes. An example for contesting the executor might be that the executor is misappropriating funds from the estate.
Obtain the forms necessary to file a formal contest with the probate clerk. Make copies of your evidence, attach the copies to the forms and file the forms with the clerk.
Present your evidence to the judge via your attorney when you attend your complaint hearing. If the judge finds that the will should not be executed, you then may enter a different will into probate if there is one. If no other will exists, the probate court executes the estate according to the probate regulations for your jurisdiction.