The cost of contesting a will in probate

Written by kay miranda
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Contesting a will can be a costly process. The burden of proof lies on the person contesting the validity of the will based on either fraud, duress or diminished mental capacity. Depending on the reason for contesting a will and the proof available, it may be very costly to contest a will. Many people may be deterred by costs or clauses that state a person will forfeit any right to their legacy if they contest a will. But the reality is that a winning case may not only gain the assets to a rightful beneficiary, and forfeiture clauses are rarely upheld in court.

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Court Fees

There are several areas that can make contesting a will extremely costly. The first set of fees will be court fees. These vary from state to state. A person does not need an attorney to file the legal paperwork and forms at the courthouse. But if things are complicated, having an attorney to navigate the legal system is a great asset. Most are paid hourly but there are many pricing structures listed in Section 2. The other costs are those of discovery to get the information that proves clearly and concisely that the will is invalid.

Attorney Costs

While a person can contest a will without an attorney, it is best to have assistance in navigating the legal system to meet the requirements of proof. There is legal aid available for people who want to contest a will but unable to afford representation. Probate attorneys range in price depending on their experience and state of residence. There are some attorneys who will work on contingency, which means they represent the contestor and only get paid from proceeds awarded to the contestor upon winning the contest.

Discovery

This is a large variable in the cost factors associated with contesting a will's validity. Discovery is accumulating all the information that leads to proof. This includes private investigators, interviews with clients, accumulating medical records, possible blood work or other tests. Proof can range from proving one is a blood relative to proving that a primary caretaker took advantage of an elderly person who trusted them.

Fee Awards

Though there can be considerable expenses in contesting a will, the contestor may have a reasonable right to have some, if not all, of his court and attorney fees awarded as part of the judgment in his favour. The courts recognise that fees may make the entire endeavour impractical and not worth contesting. Judges will determine reasonable remuneration as part of the award in many cases paid by the estate or perhaps the an individual as part of a civil award.

Time Frame

Each state is different regarding how long a person has to contest a will. Generally a person has 4 years to start filing for contesting the will. This time frame can be from the time the will's execution is started or can be from the time when the contestor would have reasonably discovered the information that leads to contesting the will.

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