Contesting a will is when a potential beneficiary or an individual who could be affected by a will challenges it in court.
Contesting a will can be hard, but if there are uncertainties about a loved one’s will, it may be your best option to have your concerns heard. This is what you need to know if you're considering contesting a will or wondering how to protect your will from being challenged.
Who can contest a will?
Only individuals with legal standing can contest a will. Generally, you have the right to contest a will if:
- You were the beneficiary of a prior will
- You are a beneficiary of the current will
- You are the beneficiary of a newer will made after the one in question
- You would be an heir if there were no will and intestacy law applied (this includes family members such as spouses and children, and possibly parents, siblings, and other relatives, depending on the family tree)
For instance, you may want to contest a will if you are an heir who would receive less from the will than you would have if your loved one had died intestate (without a will), or if you are a beneficiary who would receive less of the deceased person's assets from the most recent will than you would have under a previous will.
When can you challenge a will?
Once you have legal standing to contest the will, you also need a legal reason to challenge it, called the grounds. Just being unhappy with what you have inherited is not a good enough reason. Valid grounds to contest a will include:
- Lack of testamentary capacity. The testator wasn't mentally able to make a will.
- Fraud, undue influence, or forgery. The testator was forced, tricked, or their signature was forged.
- Existence of another will. A newer will exists than the one being probated.
- State requirements not met. The will doesn't comply with state laws.
If you're unsure about whether you have grounds, you should talk to a lawyer.
How to contest a will: Step by step
Once you've determined that you have legal standing and valid grounds to contest a will, the next step is the legal procedure.
Step 1: Consult an attorney
Contesting a legal document such as a will can be an uphill battle, so it's best to get some solid legal advice about your chances before you do anything. An estate planning or probate lawyer can let you know what your options are and help you navigate the process of contesting a will.
Step 2: Understand the statute of limitations
Find out what the statute of limitations is on a will challenge in your state. This is the time period in which you must file legal papers. If the deadline passes and you haven't filed anything, you lose your right to challenge the will. It could be weeks, months, or years from the date of death or filing of the will with the court.
Step 3: File a petition in probate court
To challenge the will, you need to file a petition in the state probate court. The petition notifies the court and the estate that you are contesting it.
Each state has its own forms and probate process, so you should check with the probate court office or hire an attorney to learn how to file a petition in your state.
Step 4: Gather the evidence needed to contest a will
Next, you will need to gather evidence to support your case. Evidence can include different versions of the will, medical records, and witness testimonies.
For example, you might need to get medical records to prove that your loved one was suffering from memory problems, or statements from witnesses who observed the decedent’s behavior around the time when the most recent will was drafted.
Step 5: Settle or go to court
Your case could settle, or it could go to a hearing.
The court process can involve the following:
- Discovery. The discovery stage is when the involved parties gather evidence to support their case.
- Depositions. A deposition is when one party asks the other party or a witness to respond to questions under oath. Your attorney can help you prepare for any questions you may be asked and use the deposition process to tell your side of the story.
- Mediation. Mediation is a dispute resolution process that your attorney may suggest as an alternative to going to trial. A neutral third party—the mediator—works to help the parties come to an agreement. If all parties can agree to a settlement, then you may not need to go to trial.
- Hearing. If a settlement can’t be reached, you may be required to attend a hearing (or multiple hearings). During the hearing, the court will look at the evidence, and the judge will determine whether the will is valid.
How long does a will contest process take?
From start to finish, a will contest typically takes anywhere from six months to two years or more. The timeline depends on several factors, including case complexity, court backlogs in your jurisdiction, and whether or not the parties are willing to settle.
The initial filing and response period usually takes two to three months. If the case proceeds to discovery, that phase could last 6 to 12 months for complex disputes involving extensive medical records or multiple witnesses. Settlement negotiations can happen at any point and may resolve the matter in weeks if all parties agree.
If your case goes to trial, add several more months for trial preparation and court hearings. Cases involving significant assets, multiple beneficiaries, or contested evidence of undue influence tend to take the longest. Understanding this timeline upfront can help you make an informed decision about whether to proceed.
What are the alternatives to contesting a will?
Before filing a formal will contest, consider whether a less adversarial approach might address your concerns. These alternatives can be faster, less expensive, and less damaging to family relationships while still resolving legitimate disputes, such as the following:
- Family mediation or negotiation. You can attempt to negotiate directly with other beneficiaries or the executor before filing any court papers. A professional mediator can facilitate these discussions and help all parties reach a mutually acceptable agreement without the cost and stress of litigation.
- File a claim against the estate. If you're owed money by the deceased—whether for unpaid debts, loans, or services you provided—you can file a creditor's claim against the estate rather than challenging the will itself. This approach doesn't require you to prove the will is invalid.
- Negotiate a settlement outside of court. Even after you've identified grounds to contest, you may be able to reach a settlement with other beneficiaries who want to avoid a prolonged legal battle. Many disputes are resolved through private agreements that redistribute assets without a formal court ruling.
- Contest executor actions. If your concern isn't with the will itself but with how the executor is handling the estate, you can file objections to specific actions during probate administration. This allows you to challenge mismanagement or breach of fiduciary duty without invalidating the entire will.
How to prevent your will from being contested
There are a few steps you can take that can help prevent beneficiaries from contesting your will, including getting witnesses and adding a no-contest clause to your will. The following tips can help reduce the likelihood of your will being challenged:
- Observe legal formalities. Make sure your will is compliant with applicable legal requirements. For instance, some states don’t allow handwritten wills that haven’t been witnessed (holographic wills), while other states require wills to be signed by disinterested witnesses (individuals who don’t stand to gain an inheritance from the will).
- Obtain witness signatures. It’s a good idea to have witnesses watch you sign your will—and add their signatures to your will—in the presence of a notary. You might also consider recording a video of the will-signing ceremony to quell future doubts about its validity.
- Include a no-contest clause. You can add a no-contest clause (also called an “in terrorem” clause) to your will to discourage beneficiaries from challenging it. A no-contest clause states that anyone who contests your will and loses won’t get any inheritance that they otherwise. No-contest clauses aren’t always enforceable, so it’s important to talk to a probate attorney to make sure a no-contest clause will be effective in your situation.
- Regularly update your will. You should update your will whenever you have substantial changes to your assets or circumstances, such as if you buy or sell property, get married or divorced, or have children. Updating your will to reflect changes to your circumstances can ensure that your will remains in alignment with your intentions.
Is it worth contesting a will?
Deciding whether to contest a will requires weighing several factors beyond your emotional response to the situation. A clear-eyed assessment of your case can help you avoid a costly legal battle with little chance of success—or give you confidence to move forward when the circumstances warrant it.
- Evaluate the strength of your grounds and evidence. Successful contests typically involve clear evidence of legal violations, not just suspicions or family disagreements. The burden of proof falls entirely on the person challenging the will.
- Compare the potential gain against the costs. Legal fees for will contests can reach tens of thousands of dollars, and cases may drag on for years. If the estate is modest or your expected gain is small, the costs may outweigh any benefit.
- Consider the emotional and relational toll. Will contests often create permanent rifts in families. Siblings, parents, and other relatives may be forced to take sides, and the adversarial nature of litigation can destroy relationships that might otherwise have survived the grief of losing a loved one.
- Be realistic about the odds. Successful will contests are extremely rare, as courts generally presume that a properly executed will reflects the testator's true intentions. Before proceeding, consult with a probate litigation attorney who can give you an honest assessment of your specific situation and likelihood of success.
FAQs about when and how to contest a will
How much does it cost to contest a will?
The process of contesting a will can cost tens of thousands of dollars, and legal proceedings can drag on for years. Costs can include court costs, filing fees, and attorney fees.
What’s the success rate of contesting a will?
Successful will contests are extremely rare.You should talk to a probate litigation attorney to determine the best course of action for your unique situation.
Can contesting a will affect my inheritance?
Yes, contesting a will can affect your inheritance. For instance, if you attempt to contest a will that includes a no-contest will and don’t win your case, you might not get any inheritance that you would have otherwise received.
How long do I have to contest a will?
The length of time you have to contest a will depends on the statute of limitations in your state. For instance, in Illinois, individuals who want to challenge a will must contest the will within six months after it has been admitted to probate, while in Texas, interested parties typically have two years after the will has been admitted to probate to file a will contest.
Brette Sember, J.D. and Cara Hartley, contributed to this article.
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