Introduction
When a county court issues a grant of probate, the court certifies two important facts: first, that the last will and testament submitted to the court is valid, and second, that the executor or administrator appointed in the grant has full legal authority to act as the estate’s personal representative. This individual is usually nominated in the will, and will be tasked with carrying out most of the probate process, settling the decedent’s outstanding debt, and ultimately dispersing any remaining assets to the heirs listed in the will.
While issuing the grant of probate initially certifies the will’s authenticity, interested parties may still challenge or protest the will after the grant is issued. Ultimately, that’s the purpose of the probate process—to ensure that by the time the estate is settled, all parties agree, and there is no foreseeable chance that an interested party will submit a will contest or claim once the estate is distributed. It’s extremely difficult—if not impossible—to re-distribute the estate’s assets after they have been transferred to the beneficiaries. Before the court finalizes the probate proceedings, they want to be sure that all matters are settled.
In the state of Arizona, the length of time an interested party has to challenge a will once probate has been granted is governed by the Uniform Probate Code. This period, known as the “statute of limitations” or the “limitations period,” depends largely on whether the probate case is classified as “formal” or “informal.”
Informal Probate
Most probate proceedings are informal. Informal probate occurs when there are initially no disputes regarding the authenticity of the will, its directions, or the individual nominated to serve as the estate’s personal representative. Providing all interested parties remain in agreement and there are no further disputes, the personal representative is free to settle the estate without court supervision. This process can vary widely from case to case, but in Arizona, most informal probate cases can be resolved in four to six months.
If an interested party chooses to challenge the will, they are free to do so at any point during an informal probate process. The interested parties who are permitted to submit a will contest include the estate’s creditors, beneficiaries, and any individuals who would have received an inheritance through the state’s succession laws but were not included in the will. Interested parties will be formally notified when probate is opened, and will have until the conclusion of probate to submit any challenges. Once an interested party challenges the will, the case is reclassified as formal probate, and the court steps in to take a larger role in the process.
Formal Probate
Formal probate is necessary when there are disputes regarding the will. During formal probate, a judge will supervise the process in part or in entirety depending on the complexity of the case. Interested parties will generally have between 30 – 90 days to contest the will after the probate grant is issued, though this can vary as the judge can suspend the statute of limitations when the court needs additional time to process claims and contests.
Reasons for Challenging a Will After Probate
Contesting a will isn’t easy. Interested parties can’t just challenge the will because they don’t like the outcome. You are responsible for providing evidence and/or witnesses to prove that the current will held by the court is invalid. There are four circumstances that can merit invalidating a will.
There is a Superseding or Alternate Version of the Will
If the individual who wrote the will (known as the testator) created another will that was intended to replace the original, then the most recent version trumps the original document. The court will assess if the new will is properly signed, dated, and witnessed, at which point the original will shall be invalidated and thrown out.
There Aren’t Enough Witnesses
On a similar note, if a will is not properly witnessed, the document can be invalidated. Most states require two official witnesses, and the witnesses should not be listed as beneficiaries in the will. If they are listed as beneficiaries, they may lose their inheritance in the will, and their portion will be allocated to the other beneficiaries. Some states also require the signatures be signed in the presence of a notary public.
The Testator Lacked Testamentary Capacity
Only adults possess the legal capacity to create a will. If a will was written by a minor under the age of 18, the document is invalid. The adult also needs to possess the mental capacity to write a will, otherwise known as testamentary capacity. Litigation that successfully challenges an adult’s testamentary capacity typically argues that, at the time the will was drafted, the individual was senile, suffered from dementia or Alzheimer’s, was mentally insane, or did not understand the consequences and implications of their last will and testament.
Fraud, Forgery, or Undue Influence
The will is considered fraudulent if the testator was deliberately misled into writing any provisions, and is considered a forgery if someone other than the testator signed the final document. If the testator was manipulated and lacked free will while drafting the will, the document will be invalidated as a result of undue influence.
The Will was Improperly Drafted or Signed
For typed wills, the testator can personally sign the will or have someone sign the will under their direction (ARS 14-2502). For holographic wills, the signature and the material provisions of the will must match the testator’s handwriting. In either case, the signature does not need to be notarized.
Keep in mind that only interested parties to the estate may contest the will. Interested parties include designated beneficiaries, disinherited beneficiaries, legal heirs (those who would normally receive assets under state intestacy laws), spouses, children, and creditors.
How to Contest a Will in Probate
Before challenging the will, consult with an attorney to see if the will contains any language that would disqualify you from an inheritance in the event you contest the will and lose. Some wills contain such provisions meant to discourage invalid claims against the estate.
After determining that the will may be invalid due to one of the previously listed circumstances, draft an objection to the will, indicating your relationship to the decedent and the grounds for challenging the will. File the objection with the probate court before the statute of limitations expires. The court will schedule a hearing, and notify the other interested parties. During the hearing, you will be required to present evidence and/or witnesses to prove the merit of your challenge.
What Happens When You Contest a Will Successfully?
If a probate judge rules that the decedent’s will is invalid, the document is thrown out, and probate proceeds as if the decedent hadn’t left a will. Probate cases without a will are known as “intestate.” The court will appoint an administrator—either next-of-kin or a neutral third party—and will distribute the estate according to the state’s intestate succession laws.
In Arizona, intestate succession tends to favor the spouse and children. If the decedent had a spouse and either didn’t have any children or only had children with that spouse, then the spouse would receive the intestate estate. If the decedent had a spouse but had children with another partner, then the spouse would receive half of the intestate estate, with the other half split equally among the children from the separate relationship. If the decedent didn’t have a spouse, the intestate estate would be distributed to legal heirs in the following order:
- To the decedent’s descendants by representation
- To the decedent’s parents
- To the decedent’s siblings by representation
- To the decedent’s grandparents by representation
- To the state
Call our Probate team at (480)467-4365 to discuss your case today.
