A clear and comprehensive estate plan has many benefits, but will contests can usurp some of them. If an estate plan is only made of a will, a will contest is more likely to succeed, and this can create a stressful situation for grieving loved ones. An Omaha wills attorney can help you protect your will from contests.
What Are the Grounds to Contest a Will in Omaha?
To contest a will, the individual must have legal standing in probate court. This means that they are a beneficiary to part of the estate in the will, or they stand to gain part of the estate through a prior will or succession laws if the current will is invalidated.
In addition to having standing to contest the will, the individual must have legal grounds to contest it. If an heir dislikes the assets they were given or a hopeful heir feels that they should have been included, this is not a good enough reason to formally contest a will. A will contest is valid if it is for one of the following reasons:
- Improper Execution: A will must follow certain guidelines to be legally enforceable. In Nebraska, this means that a will must be typed or handwritten, signed by the testator, and signed by at least two competent witnesses to the signing. The will may be invalid if these laws are not met.
- Lack of Capacity: A lack of capacity claim suggests that the testator did not have the mental capacity to create or modify the will. Capacity means that the testator understood the entirety of their estate and assets, the meaning of signing a legal document, and the action they were committing when distributing their assets.
- Fraud: Claims of fraud suggest that the testator did not create the will or was tricked by another party. The will may have been forged, the testator may have believed that they were signing a different document, or the testator may have been coerced into signing the document.
- Undue Influence: Undue influence occurs when another party exerts their will over the testator to manipulate or coerce them during the creation or alteration of the will. They may do this to benefit themselves or to disinherit another party named in the will. A claim of undue influence must prove that the individual had the ability and intent to influence the testator and that this influence directly impacted the contents of the will.
- New Will: If there is a more recent version of the will that was previously unknown, the other will is invalidated.
A will contest must be made within three years after the testator’s death or within one year after the will’s assets were distributed, whichever date comes later. If the contest is based on fraud, this time limit does not apply.
When the will contest is brought by a party with standing and based on a valid contest, the court will review the evidence for and against the will’s validity. If the will is determined to be invalid, the court will void it and use a prior version of the will that is valid. If there are no previous versions of the will, then the estate is distributed according to intestate succession laws.
How to Protect Your Will From Contests
Will contests can create significant hassle for your loved ones, and it can also result in the will you intended to establish being invalidated. Some steps you can take to prevent will contests include:
- Begin planning your will early in life to avoid lack of capacity claims.
- Update your will frequently so there are clear prior wills to reflect your wishes.
- Communicate your wishes with your family so no one is surprised by the choice you make with your estate.
- Establish a trust to keep assets out of probate and to confirm the decisions made in your will.
- Work with an estate planning attorney to create an effective, clearly worded, and enforceable will.
Q: Can a Will Be Contested in Nebraska?
A: Yes, a will can be contested in Nebraska by interested parties with a valid reason to do so. Legally valid reasons to contest a will include:
- The will was improperly signed.
- The testator was subject to undue influence.
- The testator lacked the mental and legal capacity to create or modify a will.
The party contesting the will must prove their claim to officially invalidate the will.
Q: Can You Avoid Probate in Nebraska?
A: Most estates will pass through probate court, although there are simplified probate courts and small estate affidavits for estates under a certain value. Estates that exceed this limit must take other steps if they want to avoid probate court.
The most common way to avoid probate is to place assets from your estate in a revocable trust. A trust is a legal entity that holds your assets under your name as the trustee. You name a successor trustee, who will become the trustee upon your death. Because of this, there is always someone in control of the estate, and it does not enter state jurisdiction.
Q: What Are the Legal Requirements of a Valid Will in Nebraska?
A: To have a valid will in Nebraska, the legal requirements are:
- The testator must be at least 18 years old unless they are married.
- They must have a sound mind and the capacity to create a will.
- The will is in writing, whether typed or handwritten.
- The testator signs the will.
- The will and its signing must be witnessed by a minimum of two competent people, who must also sign the will in the presence of the testator and the other witness. The witnesses cannot be beneficiaries of the will.
Q: How Long Do You Have to Probate a Will in Nebraska?
A: Probate can be filed five days after the death of the individual, and Nebraska does not have a set time limit in which probate must be completed. The probate process itself may take anywhere from 6 months to a year or more. A more complex estate or a will with many beneficiaries is likely to take more time. If there are will contests, the probate process will be much longer.
Protect Your Interests
When you limit the likelihood of a successful will contest, you are ensuring that your wishes are followed after your death. Although you cannot prevent anyone from contesting a will, there are other things you can do to limit the likelihood of a contest. If you are concerned about will contests, contact Stange Law Firm. We can help you review your will or create a comprehensive estate plan.