When a person passes away, probate is the legal process in which a person’s will is validated, the estate is settled, and property is distributed under the wishes expressed in the will. Unfortunately, validating a will and proceeding with probate is not always a straightforward process. It is an intense time when grief intersects with money. Sometimes, people believe that misconduct occurred and that the will filed with the probate court is improper. This leads to a will contest.
Challenge Before Probate
A will contest is highly contested litigation in which the State or any interested party (like a devisee under a former will) can bring a motion changing the decedent’s will before the will has been admitted to probate. Often, this is a person who believes that he or she was entitled to more than what the will filed with the court provided.
The person raising the challenge is limited to contesting the will on the following bases:
- The competency of the decedent to make a will;
- Whether the decedent was free from duress, menace, fraud or undue influence;
- If the will was duly executed and attested in accordance with the law;
- Any other question substantially affecting the validity of the will.
The person bringing the motion has the burden to prove that the will is invalid under one of these bases, and can request a jury trial to resolve the validity of the will.
Challenge After Probate
After a will has already been admitted to probate, the ability to challenge a will becomes far more limited. Within three months of the will’s admission to probate, only interested parties who were not a party to a will contest or had actual notice of a will contest are eligible to challenge a will.
Is There a No-Contest Clause?
Nevada offers security to people who want to create a protected will. “No-Contest” clauses are terms included in a will that is designed to preemptively stop people from interfering with the administration of the will. A no-contest clause can carry a provision that the person who challenges a will has their inheritance limited or entirely. Courts often enforce no-contest clauses, which serve as a strong deterrent to will contests.
Probate Lawyers at Viloria, Oliphant, Oster & Aman L.L.P.
Will contests are hard-fought and emotional battles. If you want to explore a will contest or defending a will, a probate lawyer can help you understand the process. The probate attorneys at Viloria, Oliphant, Oster & Aman, L.L.P. understand the high stakes involved and will provide you with the information you need to make smart, informed decisions. Call Viloria, Oliphant, Oster & Aman L.L.P. today at (775) 210-8178 to schedule a case consultation or contact our office through our website.