How to File Against a Will in Probate
- 1). Have standing to contest a will. Not everyone can file against a will that has been put into probate; you must have standing. You have standing if you are one of the people who were named specifically in the will, or if you would have been entitled to receive property under the intestacy laws (laws that govern what happens to property if someone dies without a will) of your state. For instance, children are entitled to receive assets under intestacy, they will have standing to challenge a will even if they were not named in the will.
- 2). Have a valid reason to contest the will. You may not file against a will simply because you are unhappy with its terms. The reasons to contest a will vary from state to state, but the most common reasons are incapacity (the person was not mentally able to prepare a will), fraud (the will is somehow fraudulent), undue influence (a person close to the deceased exerted pressure to make the person write or change her will) and duress (the deceased wrote the will only because he felt as if she had to).
- 3). File a petition or complaint (different terminology to describe the same document) with the probate court indicating that you challenge the legitimacy of the will. The probate court will maintain jurisdiction-specific forms for you to fill out. Ask the court clerk to provide you with these forms.
- 4). Attend a hearing before the probate court judge to explain why you believe the will is illegitimate. At the hearing, you will provide evidence and testimony to attempt to prove that the will is not proper.