Cheated out of an inheritance? How to contest a will

FROM THE EDITORS OF CONSUMER REPORTS Published: April 2, 2012
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Perhaps you entertained your bachelor Uncle Ernie every holiday for the last decade, but when he died he left most of his estate to your cousin Rufus, whom he hadn't seen in years.

You feel cheated and want to contest Ernie's will, but worry that going to court will be costly and time-consuming.

You're right to be concerned, says Consumer Reports Money Adviser, but you might not have to go to court to get some money from your uncle's estate. Plenty of families rumble over estates, but most settle before anyone files a formal challenge in court.

To present a credible case, though, you should understand the circumstances under which a will can be challenged. Here's what you need to know:

WHO CAN CONTEST A WILL?

-- You must be what's called an "interested party." You qualify if you're already in the will or would inherit from the decedent by law if he or she had died without one. You don't have to be a relative to be an interested party.

-- State laws protect surviving spouses (and to a lesser extent, children) from disinheritance. In community-property states -- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and, by agreement between spouses, Alaska -- you can do what you like in your will with your half-share of the community property and with your separate property.

In all other states, there is no rule that property acquired during marriage is owned by both spouses. But to protect spouses from being disinherited, most of those states give a surviving husband or wife the right to claim one-third to one-half of the deceased spouse's estate no matter what his or her will says.

Those are statutory provisions and don't require the surviving spouse to contest the will. But CRMA points out that they take effect only if the survivor goes to court and claims his or her share. If he or she doesn't object to receiving less, the will stands as written.

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