Different circumstances can lead to a crucial family member being disinherited – being left out of the will of a deceased person. While most families only recognize these situations from the TV drama they create in the lives of A- to C-list celebrities, plenty of average families struggle with will disputes and arguments over inheritance, due to painful divorces, troubling relationships, or questionable romantic and financial decisions made late in life.
If you have been left out of the will of a loved one, then there are a few things you should know right off the bat. Firstly, contesting a will can be expensive and difficult. Unless there is a good reason to believe that the will was invalid in any way, getting your fair share might be like trying to draw blood from an expensive stone. Secondly, it can be very emotionally draining. You should be prepared to tackle this like a business decision, first and foremost. Leave your emotions largely at the door or be prepared to deal with the extreme stress that may follow.
And finally, back to the first point. Contesting a will is expensive. Your first task should be to determine whether, without a shadow of a doubt, going after this is going to be worth the time and money put into it.
Is It Really Worth Contesting a Will?
If you have been left out of the will of a dear friend, with no family relation, it is going to be very hard to argue that you deserve to be accounted for. If you have been left out of the will as a relative and previously assumed heir, then you have a much better chance. But either way, your first consideration should be cost. Legal help is expensive, but critical in this case. There is no way around getting the help of an estate lawyer, especially if you plan to argue that the will is invalid.
Find a reputable estate law firm and speak to them about costs. Find out what it would cost to get a consultation, and what kind of a retainer you would be looking at. Then, to the best of your knowledge, try to work out the value of the decedent’s estate and find out how much you would likely have gotten had you been added into the will.
If the number you get from the will does not substantially dwarf the costs of potential litigation, turn around and walk away. Best case scenario, you will have only a fraction left of what you originally started fighting for, at the cost of both time and sanity. Worst case scenario, and you will not have any financial compensation for the battle you have waged.
These are all decisions you must make very, very quickly. As with many examples of litigation, time is of the essence – you cannot afford to waste any of it, and if you do decide to pursue legal action and dispute the will, you must do so soon after it has been revealed that you were not included in the will.
In California, anyone can be disinherited from an estate, so long as the proper precautions and paths are taken. Spouses are the only individuals who have the right to inherit property, with some exceptions.
If the decedent signed a pre or post-nuptial agreement with their spouse, then the decedent can technically ensure that a spouse gets nothing, and instead pass everything onto a secret mistress, a charity, or other parties.
There are also other ways. If a spouse is left out of the will without a prenuptial or post-nuptial agreement, but they received ‘sufficient assets’ outside the estate, then the California probate code does not automatically grant them anything. Furthermore, in California, an estate plan can purposefully disinherit a spouse. The estate plan can specify a different beneficiary for the decedent’s community property.
It’s easier to disinherit or omit children, in almost all 50 states. However, disinherited parties do potentially have the means to argue that they were unfairly left out of the will. Disputing a will first requires getting access to it.
Get a Copy of the Will
The way a will is contested is by essentially proving that it is somehow wrong. There are different arguments to be made for why a will might be wrong. One argument is that the will was created when the decedent was in a diminished mental state.
Someone who struggles with dementia might amend their will and forget to account for loved ones they cannot remember. Wills can also be written and signed under duress, rendering them invalid once proven. Other potential reasons to invalidate a will include an improperly, poorly, or fraudulently built will.
To determine whether any of these issues apply, it’s important to get a copy of the final version of the will, as well as all previous versions. All wills have an executor, appointed either by the decedent before death or by the probate court.
Speak with the executor and ask for copies of the will and its previous versions, in order to determine whether this can help you gather any information as to why you were left out. If you notice that you were recently omitted from the will, this may give you reason to believe that someone had pressured the decedent into cutting you out.
Once you’ve gathered all the information you can, and have lawyered up, it’s time to settle in for what could be a very difficult time. There will be misrepresentation. There will be lies. There will be some very bitter words and emotions. You may find your trust broken, and you may find yourself saying or doing things you regret.
It’s an expensive affair both financially and emotionally, and in many cases, either side eventually tries to reach a quick and decisive conclusion. If a settlement is offered, and it covers your costs and then some, you may want to consider it. At the end of the day, nothing can make you whole – but you can try make the most of some financial compensation.
However, every case is different. There are times when the case for disputing a will is incredibly strong, and there’s very compelling evidence in your favor. In times such as that, pressing on may be something you want to consider as well. It’s important to consult with your lawyer on the pros and cons of each decision, and remain pragmatic.