Will Contest Statute of Limitations
UPDATED: December 13, 2019
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Wills, trusts, property division, and estate disbursement are not always as straightforward as people would like them to be. Emotions can run high and tension can develop quickly among family members and friends, and the situation can be made much worse by an unclear will or overly complex plan of division.
If confusion develops and people involved disagree on how to interpret the wishes of the deceased, each individual has the right to contest the will or the conclusions legally drawn from it. It’s important to note, should you be considering filing a will contest, that there are various time limits on when you can do so.
Will Contest Time Limits Are Difficult to Determine
The problem may not lie in meeting the time limits, frankly, but in defining exactly what they are. Estate planning is one of the more complicated areas of law, and the statute of limitations set on will contests are one of the more complicated areas of estate planning. Fraught with exceptions, clauses, and various “what if” scenarios, the rules make it downright difficult to determine the statute in any given situation.
A lawyer’s advice is almost a must-have. But just as a general overview, a few sample rules of the statutes are below.
- A contest to a will must be filed within two years from the date the will is filed into probate. Probate is when the will has been posted and read into record and has survived any objections; at that point it is read into the record (probated) by a judge and is considered legally filed. Thus, after that date, any contests must be raised within the next two years.
- Before the probate of the will, anyone can file a contest at any time. It is only after the actual probate date that the clock begins ticking.
- Just to make it a bit more complicated, most people assume that a statute of limitations on contesting a will would begin counting down from the day of the person’s death. This isn’t so, and in fact, a full four years are allowed to pass between the death and the probate of the will. Thus theoretically, six years could pass between the death itself and the filing of a contest to the will.
- If the will isn’t found for several years after the person’s death, it may still be filed into probate when it is eventually found, even if more than four years have passed since the person's death.
- If a person is a minor when the will is put into probate, that person does not have the legal right to file a contest because they are a minor. However, he or she is given two years after reaching the age of majority to file a contest if he or she so desires.
- If a second copy of the will is found that is believed to override the original will, the date of probate on the new will takes precedence from the date of probate on the original will.
Hiring an Estate Planning Attorney
These are just a few sample clauses of the statute of limitations on will contesting. Even beyond these general clauses, each state has adopted it's own set of probate codes that vary the time frame for challenging wills in every state. If you’re feeling overwhelmed, you’re not alone. Basically, if you plan to contest a will, it’s by far simplest to do so before the will is filed into probate and before statute of limitations even becomes an issue. If this isn’t possible, and the probate date has already passed, then a clock is ticking – but you might have trouble determining what it’s telling you, so your best bet is to speak to an estate lawyer in your area for specific advice.