I grew up watching Sonny and Cher as a kid and I loved them, so when Cher makes headlines, I usually notice. The latest rumor is that at 79, she may be preparing to marry her 39 year old boyfriend, reportedly without a prenup. True or not, it sparked a nationwide conversation about assets, inheritance, and what happens when major life changes are not clearly planned in advance.
Celebrity or not, this is exactly how real families end up in conflict, especially when the stakes are high as it may be in this case. New relationships, blended households, shifting loyalties, and outdated estate documents create emotional and financial tension. And when someone passes away, leaving a whole pie to divide, this is often where the greatest dissension begins.
That leads to one of the most common questions I hear.
When someone passes away and leaves a whole pie to divide, that is when I see the most dissension amongst families. I recently spoke with someone who was thinking about contesting a will which sent me down the rabbit hole. If you are wondering whether you can challenge a will and whether you should, this is for you.
Family tension around inheritances is much more common than people think. Maybe you were left out. Maybe your share feels unfair. Or maybe you are worried that something about the will simply is not right.
Before you take any formal step you need to know who is allowed to contest a will, what qualifies as a valid reason, and importantly, what the process really looks like. Contesting a will is expensive, time consuming and emotionally draining so it is important to understand the legal framework and talk with a qualified probate attorney before you begin. Let me know if you need a referral. I happen to know several.
Not everyone gets a say. You must have what the court calls standing, which simply put, means you have a financial stake in the outcome.
You usually have standing if you are:
Named as a beneficiary in the current will
Named in a previous version of the will
An intestate heir meaning someone who would inherit if there were no will at all
In plain English, you can only contest if you were named or previously named, or, you would receive something if the will were thrown out.
Intestate heirs are determined by state law. Typically they are:
A surviving spouse or registered domestic partner
Children who are biological or legally adopted
In some situations parents, siblings, or grandparents
Here is a simple example. If a parent leaves everything to three of four children, the child who was left out may have standing to contest the will. If an adopted child is omitted entirely they may also have the right to challenge it.
Many wills include a no contest clause that threatens to disinherit anyone who challenges the will. It sounds very scary.
In practice these clauses are not as powerful as people fear. In California, a no contest clause is usually enforceable in very specific situations, and only when the person bringing the challenge does not have probable cause. If you have legitimate legal grounds a no contest clause will not automatically stop you but you still need careful legal advice before you move forward.
Once a will is formally challenged the probate process pauses while the court sorts things out. This can take months or even years and it is rarely inexpensive.
The process may include:
Filing a petition with the probate court
A discovery period where documents are exchanged and evidence is gathered
Depositions and witness testimony
Hearings where a judge reviews the evidence and makes a decision
Many disputes settle before they ever reach a full trial because everyone eventually understands how costly, uncertain, and stressful litigation can be. If the case does go all the way the probate judge will make the final decision about whether the will stands, or is set aside.
You cannot contest a will simply because you are upset or believe something is unfair. You must have a legally recognized reason and strong evidence to support it. The four most common grounds are:
Every state has rules about how a will must be signed and witnessed. If those formalities were not followed the will may not be valid. For example there may not have been enough witnesses or the witnesses may not have been present when the will was signed.
The person making the will must understand generally what they own, who their natural heirs are, and what the will is intended to do. Questions about capacity often come up when there is dementia, a serious illness or heavy medication. Medical records and testimony from doctors, friends and family members can be very important here.
This is when someone close to the person making the will exerts pressure or control so that the will reflects their wishes instead of the wishes of the person who owns the assets. Undue influence might involve isolation, threats, guilt, manipulation or taking over finances and decision making. It is difficult to prove and usually requires a clear pattern of behavior and a suspicious result such as a new will that benefits one person significantly more than everyone else.
If the signature is not genuine or the person was tricked about what they were signing, the will is not valid. This can involve forged signatures, substituted pages or documents that were presented as something other than a will. Again it is fact intensive and often requires expert testimony.
There is a limited window to contest a will. In most places the clock starts when you receive formal notice that probate has begun. If you miss that deadline you may lose your right to challenge the will even if your claim would otherwise have been strong.
If you believe something is wrong do not wait. Talk with a probate attorney in your state as early as possible so you understand the specific time limits that apply to you.
Sometimes the issue is not whether the will is valid but where the will even is.
Good starting points include:
The person who was named or informally treated as the executor
Files at home or in a home safe
A safe deposit box
The attorney or law firm that handled prior legal work
Trusted family members who might know where important papers are stored
In many states whoever locates the original will has a duty to lodge it with the probate court within a short time even if they are not the executor and even if they do not agree with what the will says.
If no valid will can be found, the estate is usually handled under ‘intestate succession’ which means state law controls who inherits.
For people who are planning ahead there are ways to reduce the chances of a family battle later, and in some cases, to avoid probate for certain assets entirely.
Common strategies include:
A properly drafted living trust that holds real estate and other major assets
Payable on death or transfer on death designations for bank and investment accounts
Transfer on death deeds where available for real property
Clear beneficiary designations on retirement accounts and life insurance
The right mix of tools depends on your assets and family dynamic, and should be planned with an experienced estate planning attorney and tax professional. Pre-planning is truly one of the kindest things you can do for your family.While you may think the initial investment is high, I assure you, it is far less than probate will cost you!
Contesting a will is serious business. You need standing, valid legal grounds, strong evidence and the emotional and financial stamina to see it through. Even then … there are no guarantees.
At the same time if you truly believe a will was the product of manipulation, fraud or a lack of capacity, it may feel wrong to stay silent. The key is to get qualified legal advice early so you can make a thoughtful decision rather than a purely emotional one.
Nothing here is intended as legal tax or financial advice. Laws change and every family situation is unique. Please speak directly with a probate attorney in your state before you take action.
If you are dealing with a trust or probate property in Los Angeles you do not have to figure it out alone. I spend my days guiding families, executors and their attorneys through the real estate piece so they can focus on everything else they are handling.
You can download my complimentary probate guide and other resources at ProbateRealEstateLA.com.
When you are ready to talk you can reach me here:
Andrea Shink
Certified Probate And Trust Real Estate Specialist
Compass Beverly Hills
Phone: 310.841.6440
Email: [email protected]
AndreaShink.com
CA DRE: 01228179
I am happy to be a resource whether you are ready to sell now or simply gathering information for the road ahead. It is better to be 10 minutes too early than even one minute too late. I had a client who was, and it cost her $500,000 of inheritance that would have gone only to her.
I take a holistic approach…it's not about the "bricks and the sticks" for me. It’s about how I can help each family or individual fulfill their long-term goals.
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