There are many reasons why a person would choose to avoid probate. In addition to being public, it can be costly and time-consuming. If you create a will, it is likely going to pass through probate. In some cases, small estates will not have to pass through probate. Each state sets its own threshold for what constitutes a small estate.
Although you cannot contest a will because you disagree with it, there are several ways in which a will can be contested. When that happens, the probate litigation may follow—which only adds to the timeliness and cost of the probate process.
(1) The Will Was Improperly Signed
A will can be thrown out as if it was never created if it wasn’t signed or done correctly. Just as each state sets its own thresholds on what stands as a small estate, they also have very detailed laws for how a will must be signed to be valid.
Granted, it is doubtful that an experienced attorney would make a mistake this large. That said, people may choose to create a DIY will. And they may do so at their own risk. In Florida, for example, you must sign your will in front of two witnesses. Without knowing the law, it is tough to create a will in accordance with them.
(2) Undue Influence
“Undue influence” is a common term you may hear in conjunction with invalidating a will. Think of it as active manipulation. It can be very challenging to prove, and you should speak to a qualified attorney if you suspect this.
Proving this may likely require evidence that a person isolated the testator (the person creating the will) from their family, organized and facilitated the creation of a will, or tried to have specific elements added to the will.
An extension of this would be (3) fraud and forgery. Imagine a caretaker who gets an older adult to sign a will—and the caretaker created the will. As insidious and illegal as that is, it can still happen. For very justifiable reasons, that will can be contested and invalidated.
Luis E. Barreto & Associates
Since 1998, Luis E. Barreto & Associates has been helping people like you with estate litigation. If you are in the middle of the estate planning process and want to ensure the probate process is easy on the people you love the most, contact us to schedule a free initial consultation.
We have a significant amount of experience providing professional legal services for anyone who needs representation during the probate process.
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