What to Expect If a Will is Contested During Probate

Wonder What the Rules are When Contesting a Will in Georgia?

Contesting a will in Georgia isn’t hard, but it can get messy.

As an estate and asset protection attorney, I’ve witnessed firsthand how contested wills can wreak havoc. They can add stress, confusion, and delay to what should otherwise be a straightforward probate process. While we all hope loved ones honor our final wishes but sometimes a will is contested during probate. If this happens, it can be tough. Contesting a will could lead to a complicated, sometimes lengthy, legal process. This legal process could strain family relationships and cause financial and emotional burdens.

Understanding what to expect if a will is contested can help you reduce the chances of a dispute. It also helps ensure your estate is administered according to your wishes.

Why Would a Will Be Contested?

Before I get into the process, let’s explore common reasons for contesting a will. While each case is unique, the following are typical grounds for contesting a will:

• Lack of Testamentary Capacity: If someone believes the person who made the will (the testator) didn’t have the mental capacity to understand the nature of their actions, the assets involved, or the people to whom they were leaving their property, they may challenge the will on the grounds of incapacity.
• Undue Influence: If someone can show that the testator was pressured or manipulated by another person into making decisions that they wouldn’t have otherwise made, the will may be contested on the grounds of undue influence.
• Fraud or Duress: A will may be contested if someone believes that it was created as a result of fraud (misleading the testator) or duress (threatening the testator into signing the will).
• Improper Execution: Each state has specific legal requirements for how a will must be executed. If a will was not signed or witnessed correctly according to state law, it may be contested.
• Invalid or Outdated Will: If someone believes that a more recent will exists that better reflects the testator’s true wishes, they may contest an older will.

The Contest Process

If someone decides to contest a will, they must file a formal objection. This is known as a “caveat,” with the probate court. This notifies the court and other interested parties (such as beneficiaries) that a challenge to the will has been made. At this point, the probate process will be temporarily halted until the issue is resolved.

The person contesting the will will need to present evidence to support their claim. This could involve witness testimony, expert opinions, medical records, or other documentation. If the will is being contested due to improper execution, for instance, they may provide evidence that the will was not signed by the required witnesses.

The Probate Court’s Role

Once the contest is filed, the probate court will review the evidence presented by both sides. The court’s primary job is to determine the validity of the will in question. The burden of proof generally lies with the person contesting the will, as the law presumes that the most recent valid will is authentic unless proven otherwise.

If the court rules that the will is valid, the probate process will continue as planned, and the estate will be distributed according to the will’s instructions. If the court finds the will to be invalid, the estate may be distributed according to an earlier valid will or, if no valid will exists, according to state intestacy laws (laws that dictate who inherits when there is no will).

Potential Delays and Costs

A contested will can significantly delay the probate process. Instead of a swift distribution of assets, the case may drag on for months or even years while the dispute is resolved. In addition to the emotional strain this can cause for family members, there are also financial costs involved. Legal fees for both sides can accumulate, and if the contesting party loses, they may be ordered to pay the legal costs of the other side.

Resolution Outside of Court

While a contested will may go to court, it’s possible to avoid a prolonged legal battle. Mediation or settlement negotiations may help family members come to a resolution without the need for a full trial. In fact, many cases of contested wills are resolved outside of court through mediation, where a neutral third party helps facilitate a compromise.

Preventing Will Contests in Georgia

There’s no way to completely guarantee a will won’t be contested. However, there are steps you can take to reduce the risk. First and foremost, ensure that your will is properly executed according to state’s laws. Then, regularly update your will to reflect your current wishes. Furthermore, make sure loved ones are aware of your intentions. If possible, involve a neutral third party or attorney to help prevent claims of undue influence or coercion.

Whether you’re creating a new will or revising an existing one, careful planning today can save your family from the stress of a contested will during probate. If you have concerns about potential challenges to your will, give my office a call at (470) 235-7868. We can help ensure that your estate plan is as airtight as possible and provide strategies to prevent disputes.

Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!