How do I Contest a Will?  

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Unlike a trust, a will cannot control your assets after you die. Instead, a will just determines where they go when you die. In other words, a will disburses your possessions and assets on death, while a trust continues to control assets well after you die.

For this reason, Alabama wills are overseen by probate courts, while trusts generally are not. Many times, after a loved one dies, the potential and expected heirs discover that a will either disinherited them or greatly reduced their share of an estate. Normally, this is perfectly legal. A living person may choose to leave their assets to whomever they choose. There are, of course, situations in which disinherited heirs may have a right to dispute a will.

For help with estate planning or breaking an invalid or fraudulent will, contact Five Points Law Group today.

What is an Alabama Will?

Under Title 43 of the Alabama Revised Statutes, the law provides for the creation and administration of wills. A will is generally defined as a legal instrument that dictates who shall receive what from your estate after your death. Things you can typically do with a will are as follows:

  • Designate your executor
  • Leave real estate
  • Leave cash and investments
  • Leave tangible property and heirlooms
  • Direct the handling of a probate estate
  • Waive your executor’s bond requirements

The law presumes that a decedent created the will as his or her final statement of wishes and intent. You will need to make a strong showing that the will is invalid in order to succeed in disputing it.

Grounds for Disputing a Will

Alabama law allows those who are “interested parties” to contest a will. A will contest must be filed in probate court where the will is filed. The following grounds may allow you to contest a will:

  • Disinherited spouse: In most cases Alabama law allows spouses to assert their right to an elective share of the estate, even if the deceased spouse tried to disinherit them.
  • Mental incapacity: A person must be of sound mind to make a will. Otherwise, the will may be held invalid.
  • Fraud: If you can prove the will was created through fraud, you may be able to get a court to invalidate it.
  • Duress and undue influence: A will should reflect the will of the person making it. If created under duress or through force, coercion or improper undue influence, it is not valid.
  • Technical requirements: A will must adhere to minimum statutory requirements. A lawyer can help you determine if the will meets all requirements.

 

Time Limit on Contesting a Will

In general, you have just six months from when the will was presented to the court to dispute it. A person who is under a legal disability (mental impairment) or a minor has up to 12 months from the date when the legal disability is removed to contest a will. This can be complicated, so if a minor or someone with a mental impairment is negatively affected by a potentially invalid will, a guardian may need to be appointed to enforce the person’s rights. Do not rely solely on information found online, as there are complex nuances that can shorten or extend the time you have to dispute a will, and each case is unique.

Contesting an Alabama Will

Will contests can be complicated and sensitive situations. If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

How do I Break a Trust?

A trust is a unique method of preparing your estate. Many people use trusts to hold ownership of property, while maintaining long-term control over their estate plan. What happens when there are disputes between heirs, or someone becomes concerned that a trust was improperly created?  Many surviving family members want to know how to break a trust in order to allow an estate to pass the way it normally would, if not for certain problems. With this in mind, consider a few basic points about how one can actually undo a trust in Alabama. For help with estate planning or breaking an invalid trust, contact Five Points Law Group today.

What is an Alabama Trust?

Under Title 19 of the Alabama Revised Statutes, the law provides for the creation and administration of fiduciary agreements and trusts. A trust is generally defined as a separate legal entity that controls the use and ownership of property. You can put just about anything into a trust, from real estate to cash or investments. A trust is a contractual agreement that a person creates, which names someone to manage the assets within it, during and after the life of the person who creates it. Much like a corporation’s operating agreement, the trust must follow certain formalities to accomplish its intended goals. Some trusts are created to minimize taxes, others are created to preserve wealth, while others still are created to preserve the right to certain government benefits for disabled persons.

Grounds for Breaking a Trust

There are many reasons why someone might wish to break a trust. A trustor (the person creating a trust) can almost always revise, edit, or void a trust, unless the trust was made irrevocable for some reason. However, once that person passes away, it can be difficult for heirs to argue there are grounds for not following the expressed intent of the trustor. Here are just a few reasons why heirs may wish to do so:

Undue Influence, Coercion, or Duress

If you discover that your deceased loved one was the victim of strong coercion or acting under duress at the time he or she made the trust, then you may be able to petition an Alabama court to revoke the trust, allowing assets to pass to heirs through the state’s default rules. This is not an easy process, as the courts generally will require strong proof.

Mental Incapacity When Created or Revised

Sadly, unscrupulous heirs and caregivers often convince people to make deathbed changes to their estate plans, leaving everything to someone other than whom they normally would. If you suspect your loved one was incapable of making a voluntary change to a trust, you may have grounds to revoke the trust. Expect a long battle, and you will likely need the help of medical experts to show that mental capacity was lacking.

Invalid / Did Not Meet Legal Requirements

Perhaps the most straightforward option for breaking a trust is showing that necessary legal formalities were not followed. Improper witnesses, lack of witnesses, or inadequate or incorrect language may all be grounds to dispute the authenticity or validity of a trust.

Disputing a Trust in Alabama

If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

Burton Dunn
Burton Dunn
Burton currently advises clients on their probate law, elder law and estate planning needs, including Social Security, Medicare, Medicaid, Veterans’ Affairs, estate and trust litigation matters, mental health issues, guardianships/conservatorships, and adoptions.

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