How to contest a will: Everything you need to know

When a person dies, their property and assets are divided among their heirs in a court-directed process called probate. During probate, the court distributes their assets based on their instructions in their last will and testament.

However, there are times when you can contest a will. This means you challenge the validity or terms of the will. Challenging a will is uncommon, but it does happen.

Grounds for contesting a will

The idea of contesting a will might bring to mind dramatic family arguments or legal battles over celebrity estates. But there are many reasons you might contest a will, and they’re not all a result of family discord. Here are some reasons you might challenge a loved one’s will:

The will-writer wasn’t of sound mind.

This means they didn’t have the mental capacity to understand what was going on around them. For a will to be valid, the writer must be able to make important decisions and understand their impact.

The will-writer was under influence from someone else.

In other words, the will-maker was pressured or manipulated to write their will by someone who had power over them, like a caretaker or family member. A will must be written without undue influence to be considered valid.

It’s unclear if the document was intended to be a will in the first place.

Ideally, a will should include a written statement from the will-maker that the document is their last will and testament. This may seem basic, but if there’s any doubt whether the document was intended to serve as the writer’s will, it can be contested and possibly thrown out. For example, an heir might argue that a draft of their father’s will found in an old notebook was an unfinished document, and that he didn’t intend for it to serve as his final last will and testament.

The will is incomplete, or missing signatures from the will-maker or witnesses.

To be legally valid, a will must be signed by the will-maker. It should also be signed by at least two disinterested witnesses (meaning the witnesses aren’t mentioned anywhere in the will). Most states require two witnesses, who can later verify for the court that the will is authentic. A will that’s missing information or doesn’t have witness signatures introduces doubt and could be thrown out.

An heir disagrees with how certain assets are distributed in the will.

Sometimes an heir challenges a will because they’re not happy with how the will-writer split their estate. For example, perhaps a child was written out of his mother’s will, but he thinks this was done on accident and argues he should have a share. Another example: A child thinks they’re entitled to more of the estate than they were left.

Who can contest a will?

Only certain people can contest a will. They must be “interested parties,” which means they have a potential stake in the estate. Interested parties include:

• Any beneficiary named in the will
• Beneficiaries listed in a previous version of a will, but written out of the most recent version
• Potential heirs — this is anyone who could receive assets under intestacy laws, including a spouse, children, parents, siblings, grandchildren, and other extended family

How do you contest a will?

Once the probate process begins and a will is filed with the probate court, you have the option to contest it. Here’s what the process looks like:

1. Consider consulting an estate attorney. This is an optional step, but many people choose to seek out the help of an attorney when contesting a will. Attorneys can be expensive, but they can also save you time in court and increase your likelihood of winning the challenge.
2. File a claim with the probate court. Probate court is handled at the state and local level, so you should file your claim in the county where the will-maker died. The court can provide you with the forms you’ll need to file your claim.
3. Present your case to the court. Once you file your claim, you may need to provide evidence to support it. This can include presenting evidence, giving testimony, or answering questions under oath (known as a deposition).
4. The court will make a decision. If you win the contest, you’ll receive control of the assets you claimed in your challenge.

How long do you have to contest a will?

Once probate starts, you only have a certain amount of time to contest a will. This time period is called a statute of limitations.

The statute of limitations varies by state, and can range from 30 days to several months. The statute of limitations begins the date the will was filed with the probate court, not the date of death.

What is a no-contest clause?

A no-contest clause is an optional condition some will-makers write into their will. With a no-contest clause, anyone who challenges a will is disinherited if their challenge fails — meaning they’ll receive nothing from the will at all.

A no-contest clause can discourage heirs from contesting a will just because they're not happy with what they receive from it. For example, a daughter contests her father's will because she wants a larger share of his estate.

Final thoughts

Contesting a will can be expensive and doesn’t always succeed — so consider your options carefully. If you want to contest a will, you may want to meet with an estate attorney to talk through your situation. Estate attorneys can provide legal advice on how likely they think you are to win the case, which can be helpful to know before committing to a contest.

Want to learn more about how the probate process works? Read our guide on probating a will.