Losing a parent, whether the death was anticipated or not, is not easy to accept. The days, weeks, and months following the death of a parent are typically filled with heightened emotions that may range from sadness and loss to denial and anger. If you are going through this period because you recently lost your father, you are undoubtedly struggling to accept that your father is gone. That struggle may be made worse, however, if you believe that there is something wrong with your father’s Last Will and Testament. If you question the validity of the Will, you need a probate attorney to help you contest your father’s Will.
Probate Basics – What Happens to a Decedent’s Estate?
Shortly after the death of an individual, the legal process known as probate is typically initiated. Probate serves several purposes, including:
- Identifying, locating, and valuing the decedent’s estate assets
- Authenticating the decedent’s Will (if one was left behind)
- Identifying and locating heirs of the estate
- Notifying creditors of the decedent’s death and allowing them to file claims against the estate
- Paying approved claims
- Litigating any challenges
- Paying gift and estate taxes
- Distributing the remaining estate assets to intended beneficiaries and/or heirs of the estate
Initiating Probate – Authenticating the Will
The person appointed to be the Executor of the estate is responsible for initiating the probate of the estate. To do that, the Executor will submit a petition to open probate along with the original Last Will and Testament to the appropriate court. If no one challenges the validity of the Will submitted for probate, the judge will declare the Will to be valid and the probate process continues unimpeded. The terms of the Will are then used to determine how the decedent’s estate assets are distributed.
Grounds for Contesting a Will
If there is a question about the authenticity of the Will submitted for probate, any “interested” person can challenge the Will. An “interested person” typically refers to a beneficiary under the current or a previous Will, a legal heir of the estate, or a creditor. You cannot initiate a Will contest simply because you are unhappy with the inheritance left to you (or lack thereof) under the terms of the Will. The underlying legal premise in a Will contest is that the contestant is claiming that the Will is invalid. In the State of North Dakota, a Will may be declared invalid using any of the following grounds:
- Lack of testamentary capacity – this alleges that the Testator (your father in this case) lacked the requisite mental capacity at the time the Will was created.
- Fraud – this can refer to a situation wherein the Testator was tricked into signing the Will or where fraud was used to deceive the Testator regarding the terms of the Will
- Undue influence – if someone exerted too much influence, or negative influence, over your father during the creation of his Will it may be grounds for invalidating the Will.
- Improper execution – every state, including North Dakota, has rules for how a Will must be signed. For example, if the Will must be signed in front of witnesses, and it wasn’t, that can be grounds for
- Revocation or subsequent Will — if the Testator (your father) subsequently revoked the Will submitted for probate it makes the Will submitted for probate invalid.
How Can a Probate Attorney Help?
Contesting a Will is typically a lengthy and complicated legal process. In addition, there is often a highly charged emotional component to a Will contest that should not be overlooked. When someone contests a Will, there will be family members and other beneficiaries who stand to lose their inheritance if the contestant is successful. This often caused conflict within the family as people “pick sides” in the litigation. Furthermore, as the contestant, you must prove the grounds you alleged when you challenged the Will’s authenticity. To do this, you need the assistance of an experienced probate attorney on your side. A probate attorney understands the legalities of contesting a Will and can help you reach a successful conclusion.
Contact a North Dakota Probate Attorney
If you have additional questions or concerns about a North Dakota Will contest, contact an experienced North Dakota probate attorney at German Law by calling 701-738-0060 to schedule an appointment.