Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
There are many types of disputes that could erupt when settling an estate, and one common type of dispute is a will contest. A will contest happens when one party files a will for probate that another party does not agree with.
There could be any number of reasons why someone believes a will is invalid. Some common examples are:
• The will was not signed by the deceased
• The will was not witnessed properly
• The will was written shortly before death and radically changed the distribution of the estate from a prior will
• The deceased lacked legal capacity to write the will when it was written
• It looks like someone other than the deceased was really behind the will being created, and the deceased was in such a condition that the other family member was able to overpower the wishes of the deceased
Whatever the reason for suspicion, Georgia probate law has a method for handling a will contest to let the truth come out. So, just because someone made it to the courthouse first and filed a will does not mean it is the end of the situation. But, you should be aware that the window for filing an objection is very short – only 10 days plus three days for mailing, for a total of 13 days maximum. If no objection is filed by the deadline, then the process will move on and the will offered to the court will likely be accepted.
After an objection (called a caveat, in legal terms) is filed, the case automatically moved into a period of time called discovery. During discovery, each party has the ability to conduct an investigation to gather evidence to help them prove their case. For example, each party has the right to send written questions to the other party called interrogatories. Each party may also send written requests demanding that the other party produce certain documents. These requests may also be sent to third parties such as financial institutions and medical providers in order to gather evidence. Finally, a party may require the other party to attend an in person interview called a deposition where a court reporter will take down everything that is said.
The discovery period will typically last six months in larger counties (at the time of this writing, population over 96,000), and two months in smaller counties.
After the discovery period ends, the next major event is a hearing on the matter in court. While it is possible to have a jury trial on the issue, it is far more usual to have the hearing with only the judge. At that time, each party will have a change to present their case, their witnesses, and their evidence as to why the will should or should not be admitted to probate. If the will is accepted, then it will be deemed to be the valid the Last Will and Testament of the deceased, and its terms will govern the estate. If the will is rejected, then the estate will either proceed under a prior will (in some circumstances, if there is one) or under Georgia intestate law. As you can imagine, the outcome of this hearing will have a lasting impact on how the estate is handled, so it should be treated as a very important event.
A will contest is not something most people ever want to have to go through. But, unfortunately, if you are presented with a will that does not look right, filing an objection and going through the legal process is the only option you have to challenge it.
If you would like help with your estate situation, reach out to a member of our team for a consultation.
Disclaimer: The information above is provided for general information only and should not be considered legal advice. Legal advice is specifically tailored to your particular situation. Please contact our office to receive specific information advice about your situation.
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