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Probate Matters

  • Adoptions Process
  • Guardianship and Commitments
  • Litigated Matters - Probate Courts
  • Partition Proceedings (Real Estate)
  • Powers of Attorney/Living Wills
  • Termination of Parental Rights


A properly drafted Will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the testator.  Unfortunately, estate planning documents, whether Wills or Trusts, do not always clearly reflect the intentions of the testator.  Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a Will. 

When someone with standing objects to a Will or a Trust, an estate may be ordered to liquidate all assets, even those intended to be bequeathed to a family member through a Will.  This is sometimes referred to as a “Will contest.” These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of Probate Court rules and procedures.

Probate Courts

Typically, if a Will is involved, a Probate Court will determine whether or not it is valid. If the Will is found to be valid, the Court will oversee the allocation of assets and ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The Court also oversees the distribution of assets if the deceased person died intestate (without a valid Will).

Who Can Contest a Will?

A protesting party may only contest a Will if he or she falls within one of two categories.  First, those mentioned in the Will, known as the Will’s beneficiaries, may enter a formal challenge.  Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the Will, or is expressly disinherited, he or she may seek to contest.  If one is not named as a beneficiary in the Will and is not a family member eligible for inheritance, known as an heir at law, he or she may not pursue a formal challenge.

In order to successfully contest a Will, the protesting party must prove that the Will is invalid.  There are several scenarios under which a Will may not be admitted, including but not limited to:

  • Undue influence - If the testator altered his or her Will under the threat of force or other persuasion, it is said that he or she was under undue influence.
  • Testamentary Capacity - If the testator did not understand he or she was making a Will, remember his or her property generally, remember his or her nearest relatives, or have the ability to indicate who should receive his or her property, the Will may not be admitted. 
  • Will does not follow procedure - A Will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
  • The Will was revoked - If the Will was revoked after it was signed, it will also be considered void.  A subsequent Will, marriage, divorce, or legal action may also revoke a Will, in whole or in part.
  • Fraud - Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party. 

When there is no Will

In instances where no valid Will exists, then intestacy laws which indicate what assets each family member is to receive go into effect.  Typically, inheritance is granted to family members according to a specific order.  Once the decedent’s debts have been paid from the estate, the remaining assets are distributed among the testator’s spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren.  

Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one’s rights.  Whether you are an executor, trustee, beneficiary or someone improperly left out of a Will, contact our estate litigation attorneys to discuss your options.


The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. The receipt or viewing of this information is not intended to create an attorney-client relationship.



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| Phone: 603-668-8300

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. The receipt or viewing of this information is not intended to create an attorney-client relationship.