Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
How does contesting a will work? Should you challenge a will?
Questions about contesting a will are very common in our office. We’re going to walk through some of the considerations that go into answering those difficult questions.
The decision about whether to challenge a will is a common topic in our firm, and we have handled hundreds of will contests.
We’re going to cover:
Let’s start with a quick definition: A challenge to a will of often referred to as a caveat, which is just a legal word that mean to challenge the validity of a will.
The caveat is a legal document that lays out all of the legal objections you have to the will. (We’ll go over some of the most common objections in a future article.)
If the caveat is successful, it means that the will is rendered invalid and the estate proceeds as if that will does not exist. That means that we could fall back to a prior will, or to state inheritance law, depending on the situation in the estate.
If the caveat is unsuccessful, then the will is determined to be valid by the court and the estate will proceed under the terms of that will.
The next question to consider is who is permitted to file a caveat?
Under Georgia probate law, any interested party may file a caveat.
Generally, this means anyone whose inheritance from the estate would be affected by whether the will is valid or invalid can object.
But, that could also include creditors of the estate in some circumstances.
Generally, the deadline for objection is up to 30 days from your receipt of the petition to probate the will.
The documents you receive should include a letter from the probate court and that letter will tell you the official objection deadline for your case.
Since the objection window is short, don’t waste any time in taking action to handle the objection.
Once that window passes, it can be difficult to file a caveat late and it requires the approval of the court.
The petition to probate will may be delivered to you by certified mail, by an overnight service such as Fedex, or by sheriff service, where the sheriff is sent out to physically hand you the document.
The objection is filed with the clerk of the probate court where the petition to probate the will was filed.
A quick note – if you believe the case should have been filed in a different state or county, that is a very complicated situation and you need to get help immediately.
So, that is the quick what, who, when and where of caveats.
In the next article, we will discuss how and whether to file.
Challenging a will is a complicated process, and I do not recommend that you attempt it without the assistance of a qualified probate attorney.
Be sure to download the Georgia Probate Handbook so you know how an estate is supposed to be handled.
As always, everything discussed in this article is just general information and not legal advice.
Every estate situation is different, and what may work in one estate may not work in another estate.
If you’re considering contesting a will, please give us a call at (770) 920-6030 to schedule a free consultation with a member of our team.
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