Do We Have to Follow the Will? Learn How to Dispute a Will

by | Mar 4, 2016

A family's executor reviewing the estate planWe would love to believe that the last will and testament of every person is thorough, concise, and professionally written with the help of an educated legal counsel and that it is impossible to dispute a will.

Is this always the case?

Absolutely not. And one scenario we often encounter are the surviving beneficiaries asking whether the will, no matter how it was put together, actually has to be followed. Unfortunately, that question is easier asked than answered. Fortunately, the answer can sometimes be no.

The Executor’s Responsibilities

One of the most important aspects of a will is naming an executor. This is the person responsible for making sure the estate of the deceased is administered. We’ve discussed in the past what considerations should be made when choosing an executor. It’s the executor’s duty to ensure that the provisions of the will are administered according to the intentions of the deceased. They cannot do this in a way that would benefit them personally unless the will dictates it.

Executor Compliance

If the executor is noncompliant, meaning they do not follow the will, there is grounds for litigation. The beneficiaries can petition the court, and force the executor to comply with the will or be removed as executor.

If the executor is in compliance, the only way a beneficiary wouldn’t receive their portion of the will is if the estate is insolvent, meaning there are not enough assets to cover the deceased’s debts. In this case, creditors receive payment before the beneficiaries. Beneficiaries who are not satisfied with an executor must act quickly, as a statute of limitations does exist to protect the executor.

Will Contest

If the beneficiaries believe that the will is not valid (either because it is fraudulent, executed as a result of undue influence or when the testator lacked mental capacity), a Will Contest case may be in order. This can be a costly and lengthy process involving multiple court appearances to settle all grievances against the will.

Family Settlement Agreements

A family reviewing plans for redistributing the estateSuppose the estate isn’t insolvent and the executor is thorough in administering the will. However, the beneficiaries all agree that they’d like portions of the estate distributed in a way that contradicts the will. In other words, all the beneficiaries disagree with the will but agree with themselves on a better course of action.

This could happen because the language of the will is outdated, laws have changed, or tax incentives would persuade the beneficiaries to do something other than what the will dictates. It’s also possible that the will does not treat all children of the deceased equally. However, the children might all agree that they should have an equal split of the assets, or the children might decide that a less fortunate child should have a bigger share of the inheritance. Whatever the case, the beneficiaries can sign a Family Settlement Agreement to alter the distribution of the estate called for in the will to conform with the agreement between the beneficiaries.

When a Family Settlement Agreement is signed, the will may or may not be probated; however, the distribution of the estate conforms to the terms of the Family Settlement Agreement rather than the will. Family Settlement Agreements are often the result of the settlement of a will contest that has been filed.  Rather than roll the dice at trial, the beneficiaries negotiate a settlement somewhere in the middle of each side’s original demands.

Consult An Experienced Attorney

We always recommend you seek the counsel of an experienced estate planning or estate litigation attorney if you are trying to decide whether or not to dispute a will. A qualified estate attorney can help you make the right decisions for your family and everyone involved. At Romano & Sumner, we pride ourselves on our ability to assist our clients in navigating complex legal processes like estate planning or creating a will. If you have any questions, please feel free to contact us today.