Can You Force A Will To Go To Probate?
When folks talk with probate lawyers about their cases, there are often questions about how much power they may have to force the issue to go to court. The simple answer is that everyone has the legal right to retain probate lawyer services, petition the court for a hearing, and get their moment in front of a judge. How things go from there, however, can be a little more complicated. Let's look at how a probate attorney would try to address the issue of forcing a case into probate.
Petition and Notice
The first order of business is notifying the court that you have serious concerns about the will of a deceased person. A probate lawyer can help you with submitting your petition. Likewise, the fact that there may be other interested parties leads to a requirement in most jurisdictions that petitioners must publish notice. Usually, this involves taking out a print ad in a newspaper that is located in the vicinity of the deceased's last legally accepted address.
Determining Standing Before the Court
One of the first things a judge will try to do is to eliminate parties that have no business pursuing legal action. Generally, anyone who doesn't meet the standard definition of an heir, such as a surviving spouse or the deceased's child, is going to face a lot of scrutiny at the initial hearing. In many states, children and surviving partners have a legal right to demand probate. For everyone else, it's wise to come to court with a lot of supporting paperwork showing the deceased wanted you to inherit because third cousins will rarely get much of the court's time before their cases are dismissed.
Notably, standing might be established by the lack of typical heirs. Perhaps a person died unmarried and childless. The court would be obligated to consider petitions from the closest surviving next of kin, such as parents and siblings. In practice, though, the lack of these sorts of heirs usually triggers probate long before anyone feels the need to petition the court.
Showing Issues With the Will
The best argument for pushing the matter beyond an initial hearing is proof that something is wrong with the will. For example, there might be questions about whether amendments were properly notarized and witnessed. Fraud is another argument, but you'll need fairly strong proof. Also, a case might be built around ambiguous terms in the will. Without a major question about the will, the court will likely order the estate to proceed under the supervision of the named executor.
To learn more, contact a probate lawyer.
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