The vast majority of the time, when people have taken the time to develop a sound estate plan under the guidance of a lawyer, there won’t be a problem when the time comes for probate. In fact, it’s estimated that fully 99 percent of wills in the U.S. pass through probate with no problems.
That number may be dropping due to the popularity of do-it-yourself will forms that you can get online, however. While you’re not required to hire an attorney to set up your will or estate plan, it’s a pretty complex area of the law. It’s easy to miss a potential issue — and that might mean your will could be contested after your death.
Basic problems could bring about a costly will contest
Whether you’re working on your estate plan or considering will contest, you should be aware of what issues could challenge a will’s validity. There are four main problems that could result in a will being ruled invalid by the probate court:
This isn’t the final will. A potential beneficiary might bring forward a will that was written later and therefore supersedes the one being probated. The will being probated might also be shown to be a forgery or legally invalid.
The will doesn’t meet the basic requirements of state law. These are usually very basic. For New Jersey residents, for example, a will is valid if 1) it was written by a testator (the person writing the will) who is 18 or older; 2) it was signed by at least two people who witnessed the testator’s signature or acknowledgment of the signature; 3) was signed and dated by the testator. Wills can also be valid in New Jersey if they are handwritten by the testator.
The testator wasn’t in sound mind. A person considered legally incompetent, such as someone suffering from dementia, doesn’t have the capacity to write a legal will.
The testator was the victim of fraud or unfair pressure. Sadly, it’s not unheard of for people to trick or pressure elderly people into changing their wills for the trickster’s benefit.
When any of those problems arises, a family member or potential beneficiary may be able to have the will ruled invalid. If there is no valid will, any property covered by the invalid will has to be distributed in probate as if there were no will at all.