Your Last Will and Testament will likely be one of the most important legal documents you execute over the course of your lifetime. After all, your incentive for creating a Will is the assurance that your estate assets will be distributed according to your wishes after your death. What happens, however, if someone challenges the validity of your Will during the probate process that follows your death? Is there anything you can do to prevent that from happening? It is always in your best interest to consult with an experienced estate planning attorney if you have specific questions pertaining to your estate. The Fargo estate planning lawyers at German Law Group, however, explain the legal process that ensues when someone contests a Will in North Dakota.
What Happens to Your Will after Your Death?
You finally took the time to sit down with an estate planning attorney and put together an estate plan, the cornerstone of which is your Last Will and Testament. If you have never been through the probate of an estate, however, you may not know what actually happens to your Will after your death.
Immediately following your death, your loved ones will search for your Will. Hopefully, you entrusted an original copy of your Will to a spouse, adult child, and/or your estate planning attorney to make things easier for your loved ones after your death. It is imperative that an original, signed copy be located in order to initiate the probate of your estate. Probate is the legal process that is required following the death of an individual. Probate serves several related functions, including:
- Authenticating the decedent’s Last Will and Testament
- Identifying, locating, and valuing estate assets
- Notifying creditors and allowing them to file claims against the estate
- Ensuring that taxes are paid
- Transferring estate assets to intended beneficiaries and/or heirs of the estate
As soon after your death as possible, the person you appointed as the Executor of your estate will submit an original copy of your Will, along with a petition to open probate, with the appropriate probate court. This officially begins the probate process.
What Is a Will Contest?
One function of the probate court is to determine that the Last Will and Testament submitted to the court is authentic and is the correct Will to be used to probate the estate. If a Will contest is filed it means that someone is challenging the Will’s validity. Although any “interested person” may contest a Will, the challenge must allege, and eventually prove, a valid legal ground on which the Will is invalidated. Simply being unhappy with your inheritance is not a sufficient legal basis on which to contest a Will. In the State of North Dakota, for example, a Will contest might allege that the Will is invalid because the Testator was unduly influenced during the making of the Will. Undue influence means that someone exercised coercive influence over the Testator and the Testator when making the Will and was, therefore, unable to exercise his or her independent personal judgment.
What Happens When a Will Contest Is Filed?
If someone does contest your Will, and the court finds that the challenge alleges an actual legal basis on which the will could be declared invalid, the contest will have to be litigated. Your Executor is responsible for defending your Will throughout the ensuing litigation. If the contestant is successful, the court will invalidate your Will and look for another valid Will, such as a previous Will, to use to probate your estate. If no valid Will is located, the North Dakota intestate succession laws will be used to probate your estate. If the contestant is unsuccessful, the probate of your estate will resume using the Will originally submitted for probate.
Can I Do Anything to Prevent a Will Contest?
Although there is nothing you can do to guarantee that a Will contest won’t be filed during the probate of your estate, working with an experienced estate planning attorney when you create your Will significantly decreases the likelihood of a Will contest being filed, much less being successful. In addition, North Dakota allows a Testator to execute a self-authenticating affidavit that can be attached to your Will that ensures the court that you did, indeed, execute the Will.
If you have additional question or concerns regarding a Will contest in North Dakota, contact the experienced estate planning attorneys at German Law Group by calling 701-738-0060 to schedule an appointment.