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Is a lawsuit necessary when one child isn’t named in a will?

On Behalf of | Jul 25, 2023 | Estate Litigation

People initiate probate litigation for many different reasons. In some families, there’s reason to question the capacity of an older adult who put together an estate plan, as family members may believe that an they may have experienced cognitive decline that affected their ability to draft legally-binding paperwork.

Other times, the issue isn’t with someone’s mental state but rather with the instructions that they left behind when they died. Occasionally, those with close relationships to the deceased will have questions about the accuracy of the estate planning paperwork because they are not listed among the beneficiaries of the estate. Perhaps someone left assets for three of their four children or all but one of their grandchildren.

Does someone left out of the estate plan need to go to court if they question their lack of inheritance?

Litigation is an option in cases of oversights

Initiating litigation in probate court might result in a judge amending or setting aside specific paperwork, including the final version of a will someone drafted. Someone surprised about their exclusion from an estate plan could claim that the documents are inaccurate and that the testator simply forgot to include them. However, if the testator left an imbalance inheritance, meaning that one beneficiary received assets were far less than what others inherited, the beneficiary disappointed by their inheritance may not be in an actionable position. They would need to be able to argue that some kind of mistake or oversight occurred rather than an intentional choice to limit their inheritance.

State law does not give the children of someone who recently died an inherent right to a specific amount of their estate in a scenario where someone put together estate planning paperwork. It is the terms set in the documents that establish someone’s right to inherit. How a testator went about structuring their legacy will have a major impact on whether or not someone excluded from their instructions can take legal actions.

The details of someone’s estate plan will largely determine whether or not litigation is possible when someone is upset about their inheritance or lack thereof. Only in cases where there is a justification for challenging someone’s final wishes, such as a belief that they made a mistake or evidence of undue influence by the party that inherited more property, with the courts consider setting aside the testator’s written wishes.

Learning about when a situation may justify probate litigation can help those surprised or disappointed by the estate planning efforts of the loved one choose how to respond in informed ways while there is still an opportunity to do so.