Author: Paul Black
Paul’s experience as the son of two parents with big health challenges is what led him to the work he does today and gives him first-hand knowledge of the challenges that many caregivers and family members face. After graduation from GSU Law, Paul was chosen from dozens of applicants nationwide as one of three 2010-2011 Borchard Foundation Law & Aging Fellows. Paul has been named as a SuperLawyers “Rising Star” in the area of Estate Planning and as a member of Georgia’s “Legal Elite” by Georgia Trend magazine. Published on: September 16, 2020. Last updated on: September 29, 2020.
Contesting a Will in Georgia
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If properly drawn up, a will is a great way to pass assets to your children, family, friends, or charity and ensure that your final wishes are carried out as you desire. Unfortunately, a person or persons will sometimes dispute or contest the will in place, so it’s always best to find an experienced, knowledgeable attorney who can resolve a disputed or contested will, even if it means litigation.
Whether you’re looking to create a will, resolve a contested will, or contest a will yourself, The Law Office of Paul Black can help you meet all of your Georgia will & probate needs. Here’s what you need to know about contesting a will in Georgia from our experts.
Steps to Contesting a Will
A will can exclude people who figured they would be included or told they would be. Being left out of a will is a situation most people do not want to find themselves in, but survivors are often surprised when a loved one dies and they discover that they are not named in the will as expected.
If you were left out of a will, there are steps you can take to clarify why and possibly contest it. Typically, you will have to prove diminished mental capacity, fraud, or coercion to go against a will’s terms.
How to Contest a Will in Georgia
If you would like to contest a will you have been left out of, prepare for a battle to get some of the estate. Be sure that contesting is really in your best interest, makes sense monetarily, and that the gain outweighs the legal costs.
You will also want to be sure it makes sense emotionally since it can be a long, arduous process that may involve many steps. To successfully contest a will, you must prove diminished capacity, coercion, or fraud. Talk with your attorney to have a frank discussion about your chances of winning the case and what your alternatives are.
What Does it Mean to Contest a Will?
If your lawyer determines you have a case, they can file a contest on your behalf. In legal terms, contesting a will is a process that involves formally objecting the will’s validity. This is based on the contention that the will does not reflect the actual intent of the testator or that it is otherwise invalid.
The goal of contesting a will is to question a current will and enforce a previous version where you are a beneficiary. If you do not appear in several versions of the will, your chances of a successful dispute will become slimmer as several wills have to be proven invalid. Be prepared to have a burden of proof ready.
Grounds for Contesting a Will in Georgia
In Georgia, the person who wrote and signed the will gets the final say on who is in the will. Despite measures that are taken, a will contest could occur.
State laws provide the ground for will disputes, which include:
- Incapacity: The person making the will – the testator – must have the capacity to sign a valid will. They must understand the extent and nature of the property, know who could benefit from the will, and realize this will have a lasting effect on the person’s property. Those contesting a will on the basis of capacity want to show the testator exhibited signs of Alzheimer’s, dementia, mental illness, or were under the influence of drugs and alcohol. The signer’s age or feebleness will typically not be enough to prove a lack of testamentary capacity when signing a will.
- Fraud: This can only be proved if you can show the testator had and was deceived by fraudulent representation when the will was signed. Even if there is evidence of or a motive for fraud – without actual proof the supposed fraud made the testator create provisions in the will – it is not sufficient to invalidate the will.
- Undue influence: A will can be overturned if the person contesting proves that the testator was under undue influence like coercion and duress at the time of the will’s signing.
- Improper execution: Every state, including Georgia, has strict requirements for the execution of a valid will. One such requirement is the signatures of at least two witnesses. You may want to seek the help of a notary, too. A will is not valid unless it adheres to state requirements.
- A later execution: A will revokes all prior wills. This is the general rule of thumb unless the testator lacks capacity, is under fraud, or is being subject to undue influence when the will is signed.
If you believe the will was changed under duress or diminished capacity, you can find out why. Ask for a copy of the current will, versions of it, and assets. A good attorney should be able to assist you with this.
What Happens When You Contest a Will?
The steps to contesting a will could delay probate by years and is likely to fail. Because of this, a settlement may be reached. It is likely to be smaller than if you won the case, but it will save you legal fees and avoid a long probate process that likely could damage relationships with family members.
If you win your case, you are now in control of the assets you claimed, like being cut a check or having a hefty lump sum deposited into your bank account. Any physical property would be transferred, and your name added to the title when it is registered with the county. If you win a house with a mortgage, you will assume responsibility for payments and the lender is made aware you are the new owner.
If you lose the contested will case, you can expect to be disinherited from other property you may have previously been entitled to. The other beneficiaries may appeal, so prepare for a trial that is costly and lengthy.
Keep in mind that there may be a time limit of up to four years on your ability to contest a will. The exact time limit depends on whether the will was executed under solemn form or common form in probate court. You should contact an attorney as soon as possible for legal advice on whether the contesting of a will is still an option.
Estimated Cost of Contesting a Will in Georgia
Specific laws vary by state, so it is important to get the advice of an attorney experienced in estates and wills before you can determine if you have grounds for contesting a will in Georgia. They will likely contact the attorney representing the executor of the estate and threaten to contest the will, which will take resources, time, and money.
So, how much does it cost to contest a will? The estimated cost of contesting a will in Georgia can be anywhere from $10,000 through $50,000, which is conservative. A contested will case can take up to two years or longer if the case ends in a trial. It is up to you to decide if the estate justifies the expense.
If you are pondering whether to contest the will, remember that there will be an emotional toll and you could be subjected to an ugly battle that can make you go against family members. Contacting a trusted Atlanta law firm is the best way to determine whether this is worth it. If you are interested in determining the cost of contesting a will in Georgia, please contact The Law Office of Paul Black to schedule a consultation.