The Rules for Contesting a Will in My State

Beneficiaries and family members can challenge a will to show it is invalid. Grounds to challenge a will can include improper execution, lack of capacity, and undue influence.

However, challenging a will can be an uphill battle. There is a limited time to challenge a will. In some cases, contesting a will can put your financial interests in jeopardy.

The process for contesting a will varies by state. A qualified attorney can explain the legal requirements to challenge a will in your state. Contact an estate planning and probate lawyer for legal advice.

Three Rules To Legally Challenge a Will

If you’d like to contest a will, there are some rules to follow.

Chief among them is that the person has to be dead. “That’s the first mistake a lot of people make,” says Marsha Madorsky, who practices estate planning and probate law at Duane Morris in Miami, Florida. “People come in and say, ‘I want to contest my father’s will.’ ‘When did he die?’ ‘He’s not dead yet.’ ‘Well, I’m sorry, you can’t do that.'”

The second rule: Not just anyone can contest a will. “You have to have what’s called ‘standing’ in legal terms,” explains Gina Chevallier, an estate planning and probate attorney in Coral Gables, Florida. Those with legal standing must be an “heir at law,” or someone who would inherit under intestacy laws in the absence of a will. This generally includes a spouse, child, or grandchild of the loved one. Or if you were a named beneficiary or personal representative in an earlier version of the will, and left out in a newer will.

Third rule: You must have a valid reason. “There are three traditional grounds,” says Frank Adams, an estate planning and probate attorney at Dunwody White & Landon in Coral Gables. “First is improper execution.” In most states, a person over age 18 must execute a will, witnessed by two people who observe the testator, and each witness signs the legal document. However, other states, such as Georgia, allow individuals as young as 14 to execute a valid will.

“The statute reads that they must be in the presence of each other,” Adams says. Although some states allow a testator and witnesses to sign electronically during a recorded video call, witnessed by a notary, there are potential complications with this process. “You can’t know what else is going on behind the camera, and it could come into question in the future,” Madorsky says. “[It’s] not worth the potential for a lawsuit.”

Sound Mind and Mental Capacity

A common ground for contesting a will is the “lack of testamentary capacity” at the time the will was written.

However, Chevallier points out that this lack of capacity standard is “different than your garden-variety incapacity. I may be suffering from dementia or some kind of mental illness that does not allow me to handle my own affairs, but that does not mean that I cannot create a will.”

Adams explains: “You have to be aware that you’re signing your will, you have to have some idea of what your assets consist of, you have to be aware of what we call the natural objects of your bounty [basically, your family], and you have to be aware of the consequence of what you’re about to do.”

If Family Members or an Interested Person Oversteps

The third ground for contesting is “undue influence.”

An example, Frank says, is the classic situation in which a devious caretaker takes an elderly employer to a lawyer and instructs the elderly person to leave everything to them. Many states have laws that allow proof of undue influence. “Then the burden of proof shifts to the proponent of the will to establish that it was not a result of undue influence,” Adams says.

Other legal grounds that are commonly seen, Adams adds, are fraud (someone lying to a testator), duress (a physical or emotional threat to get a testator to add someone to a will), and unintended errors in the will.

Your Timeframe for Contesting a Last Will and Testament

Once the probate court accepts a will, the personal representative must serve notice on all interested parties.

However, if you think you were disinherited by fishy means, you won’t receive a notice of administration. But Chevallier says, “You can file a ‘caveat’ with the court in the jurisdiction in which the decedent lived. They have to now notify you of any formal administration before submitting a will to probate.”

Adams believes this offers a strategic advantage. “There’s a psychological difference when the court has already acted and appointed a personal representative and admitted the will to probate versus ‘Let’s have the fight ahead of time when the person doesn’t have the apparent authority of being the personal representative.'”

You then have a limited time to contest the will. The statute of limitations can vary by state. The time limit can also vary depending on the type of probate and triggering event.

State-by-State Time Limits To Contest a Will

The following table shows the time limits for the contestant to challenge a will.

State	Time Limit	When the Clock Runs	State Statute
Alabama	6 months	Probate admission	Ala. Code § 43-8-199
Alaska	4 months	Formal/Informal probate admission	Alaska Stat. § 13.16.045
Arizona	4 months/12 months/2 years	Notice/Probate admission/Decedent’s death	Ariz. Rev. Stat. § 14-3306; § 14-3108
Arkansas	3 months	First publication of notice to creditors	Ark. Code § 28-40-113
California	120 days	Probate admission	Cal. Prob. Code § 8270
Colorado	3 years (with shorter exceptions)	Probate admission	C.R.S. § 15-12-108
Connecticut	30 days	Mailing of notice	Conn. Gen. Stat. § 45a-186
Delaware	6 months	Probate admission	12 Del. C. § 1309
Florida	3 months	Service of notice of administration	Fla. Stat. § 733.212
Georgia	Depends on type of probate	Depends on type of probate	O.C.G.A. § 53-11-10
Hawaii	90 days/12 months	Notice of informal probate/Probate admission	Haw. Rev. Stat. § 560:3-108
Idaho	3 years	After decedent’s death	Idaho Code § 15-3-108
Illinois	6 months	Probate admission	755 ILCS 5/8-1
Indiana	3 months	Probate admission	Ind. Code § 29-1-7-17
Iowa	4 months (or 1 month from mailing)	Second publication of notice	Iowa Code § 633.309
Kansas	4 months	First publication of notice	Kan. Stat. Ann. § 59-2239
Kentucky	2 years	Probate admission	KRS § 394.240
Louisiana	5 years	Opening in court	LSA § 9:5643
Maine	3 years	After decedent’s death	18-C M.R.S. § 3-108
Maryland	6 months	Appointment of personal representative	Md. Code, Est. & Trusts § 5-207
Massachusetts	1 year/3 years	Probate admission/Decedent’s death	Mass. Gen. Laws Ch. 190B, § 3-108
Michigan	21 days to 1 year	Probate admission	Mich. Comp. Laws § 700.3412
Minnesota	1 year/3 years	Probate admission/Decedent’s death	Minn. Stat. § 524.3-108
Mississippi	2 years	Probate admission	Miss. Code § 91-7-23
Missouri	6 months	Date of probate or first publication	Mo. Rev. Stat. § 473.083
Montana	1 year/3 years	Probate admission/Decedent’s death	Mont. Code § 72-3-122
Nebraska	1 year/3 years	Post-distribution/Decedent’s death	Neb. Rev. Stat. § 30-2408
Nevada	3 months	Probate admission	NRS § 137.080
New Hampshire	6 months	Probate admission	N.H. Rev. Stat. § 552:7
New Jersey	4 months/6 months	Date of probate for resident/Non-resident	N.J. Ct. R. 4:85-1
New Mexico	12 months	Probate admission	N.M. Stat. § 45-3-108
New York	On or before the citation date	Or as directed by the court	NY SCPA § 1410
North Carolina	3 years	Application for probate	N.C. Gen. Stat. § 31-32
North Dakota	3 years	Probate admission	N.D. Cent. Code § 30.1-12-08
Ohio	3 months	Filing of certificate of notice	Ohio Rev. Code § 2107.76
Oklahoma	3 months	Probate admission	Okla. Stat. Tit. 58, § 61
Oregon	4 months	Notice to interested persons	ORS § 113.075
Pennsylvania	1 year	Probate admission	20 Pa. C.S. § 908
Rhode Island	20 days	Notice of appeal from probate decree	R.I. Gen. Laws § 33-23-1
South Carolina	8 months/1 year	Informal probate/Decedent’s death	S.C. Code § 62-3-108
South Dakota	12 months/3 years	Informal probate/Decedent’s death	S.D. Codified Laws § 29A-3-108
Tennessee	2 years	Probate admission	Tenn. Code § 32-4-108
Texas	2 years	Probate admission	Tex. Est. Code § 256.204
Utah	3 years	Decedent’s death	Utah Code § 75-3-107
Vermont	Depends on type of probate	Depends on type of probate	14 V.S.A. § 101
Virginia	1 year	Probate admission	Va. Code § 64.2-448
Washington	4 months	Probate admission	RCW § 11.24.010
Washington, D.C.	6 months	First publication of notice of appointment	D.C. Code § 20-305
West Virginia	6 months	Probate admission	W. Va. Code § 41-5-11
Wisconsin	Before probate	Before probate	Wis. Stat. § 856.11
Wyoming	3 months	First publication of notice	Wyo. Stat. § 2-7-201

Letting Go of a Will Contest

Even if you feel you have a solid case, attorneys recommend mediation, a settlement, or, if at all possible, letting it go.

For one thing, notes Adams, there are the legal costs and attorney fees. “Will contests are phenomenally expensive,” he says. Even in a simple will contest, he says, “Your starting point’s $50,000.”

“If you’re going to be spending 50 percent of what you stand to gain, the only ones winning in that situation are the attorneys,” adds Chevallier.

There’s also a self-care factor. Avoiding a formal will contest and probate litigation can save “a lot of heartbreak, a lot of hard feelings, a lot of angst,” says Madorsky. “I mean, these are, more often than not, families, right? And there’s nothing worse than families fighting over money.”

Some people include a no-contest clause in the will. If a beneficiary contesting a valid will is unsuccessful in court, they may lose their claim to the deceased’s estate. However, no-contest clauses are unenforceable in some states. Talk to an experienced attorney about the process of contesting a loved one’s will.

Find Legal Help for Estate Planning

Fighting a deceased person’s will is challenging. Gather evidence of previous wills, medical records, and other documents. Talk to a local estate planning attorney about your legal options to challenge the validity of a will.