Litigation is stressful and emotionally draining even under the best circumstances. But it's even worse when you're fighting with your family.
But this is exactly what happens when your loved ones pass away and fights break over the estate.
What does probate mean?
Probate is a formal legal process that allows for the distribution of a person's estate.
If the person dies with a will, the court will recognize the will and allow the estate administrator to start administering the estate. If the decedent did not appoint an administrator in the will, the court will appoint one.
By contrast, if the person dies without a will, the court will appoint an executor, who will administer the estate per the intestacy laws of Washington, Oregon, and Alaska.
How can you contest a will in Washington, Oregon, or Alaska?
In general, a valid will requires that the testator (i.e., the person who makes the will) make the will knowingly, intelligently, and with full knowledge if its consequences.
Therefore, you can challenge a will if you think any of these has occurred:
- The testator lacked the required mental capacity to sign the will
- The testator was under undue influence when signing the will
- The testator was a victim of fraud
Lack of Mental Capacity
Obviously, to make a valid will, the testator must understand the nature of his or her assets and liabilities and what it means to execute a document that disposes of these assets and liabilities.
In other words, the testator must be mentally competent. That means the testator:
- Understands what it means to make a will
- Knows nature and extent of property
- Recognizes the natural heirs and heirs who would normally inherit property
- Understand how assets will be distributed
- Can form a rational plan for distribution of assets
Severe dementia, Alzheimer's disease, terminal illness with mental impairment—these factors suggest a lack of mental capacity.
Under the Influence
In the will context, this doesn't mean you are the necessarily under the influence of drugs or alcohol. This means someone else is using his or her position of power to improperly influence the testator to change the will to benefit the other person.
Here are some red flags that could mean improper influence:
- Sudden changes to estate plans that benefit caregivers or new acquaintances
- Isolation from family and friends
- Changes made while the testator is vulnerable or dependent
- Unexplained disinheritance of close family members
Example: Your father recently passed away and you discover he signed his most recent will while he was severely depressed, giving most of his property to his caregiver. In his previous will—signed years earlier—your brothers and sisters and you received equal shares.
Example: Disinherited Beneficiaries
Being disinherited means being excluded from a will or receiving less than expected. This may be evidence that someone improperly influenced the testator, especially if that someone received money or property to which you thought you were entitled.
Fraud or Forgery
Contesting a will based on fraud or forgery means arguing that the will is not valid because it was created dishonestly. Fraud happens when someone tricked the person making the will into including things they did not truly agree with or want. For example, a person may successfully lie to the testator that they are their long-lost child from an affair many years ago.
Forgery is when someone fakes the testator's signature or creates an entirely false last will and testament. For example, the forger may create a completely new document rather than altering the original will by copying the testator's signature style, adding fabricated witness signatures and notary stamps, and dating it after the original will to supersede it.
To prove fraud or forgery, you will need more than just your belief—you will likely need expert handwriting analysis or testimony about suspicious circumstances.
How can you challenge the actions of the executor or estate administrator?
An executor's role is to faithfully manage the estate's assets and distribute them according to the will.
If you believe that misconduct has occurred, you can petition the court to remove the executor of the will or the administrator of the estate to recover misappropriated assets. To file a challenge, you must be a beneficiary of the will or the estate.
Common types of misconduct include:
- Using estate funds for personal expenses (e.g., an executor using estate money to go on vacation)
- Failing to provide accurate accountings of estate assets (e.g., an executor submitting incomplete financial reports that concealed personal use of the estate's rental income)
- Favoring certain beneficiaries over others (e.g., an executor expediting the transfer of valuable antiques and investment accounts to one sibling while repeatedly delaying or obstructing distributions to a stepsibling, claiming "paperwork delays," despite the will requiring equal distribution)
- Selling estate assets below market value to friends or family (e.g., an executor selling a vacation for half of its value to a relative without obtaining proper appraisals or marketing the property to other potential buyers, thereby, depriving beneficiaries of the full inheritance value)
Family and Beneficiary Disputes in Washington, Oregon, and Alaska
Family and beneficiary disputes are the most common reason for probate litigation. These disputes may involve but are not limited to the above-listed issues.
Sibling Disputes in Probate
Common sibling conflicts include:
- Disagreements over the distribution of personal items
- Arguments over who should serve as executor
- Disputes over the sale of family property
- Claims of unfair influence over parents
Example: Your brother and sister want to sell your parents' home, but you want to keep it in the family.
Disputes Over Asset Distribution
Asset distribution disputes often arise from:
- Unclear will language about who receives specific items
- Questions about whether lifetime gifts should be counted against inheritances
- Disagreements over asset valuation
- Conflicts over personal items with sentimental value
Example: Your mother's will states that her jewelry collection will be “divided equally among my children,” but does not specify who gets what pieces.
Spousal Rights in Probate
Surviving spouses have special protections, including:
- Right to an elective share (typically 30-50% of the estate)
- Community property rights in applicable states
- Homestead rights
- Family allowance during probate
Example: Your will leaves everything to your children from a previous marriage, but your spouse can usually claim her elective share of the estate.