Most parents want their children to inherit the majority of their assets when they pass away, and they will make provisions for this in their will. However, things don't always go smoothly, and children might be unhappy with the contents of their parents' will.
For example, if a parent wrote their will to benefit two children, had a third child, and then died before they could update their estate plan, that third child might get accidentally disinherited. In cases like these, a minor may wonder if they can contest their parent's will with the help of an estate lawyer.
Can a Child Contest a Will?
Under the law, a minor cannot initiate a will contest. This means that a child under 18 can't dispute their parent's will, even if they were disinherited on accident. By the time they turn 18 and become eligible to take part in legal proceedings, the probate process may be over. However, that doesn't mean they simply have to accept the outcome.
A child's legal guardian may be able to contest a will on the minor's behalf. In some states, the will's executor can also file a legal proceeding on behalf of a deceased parent's child. An estate and probate administration lawyer can help explain the process and guide their client each step of the way.
How to Contest a Parent's Will
The first step is to file a notice of intent to contest the will with the probate court in the county where the deceased parent lived. Then, the minor's guardian or legal representative must convince the probate court that the child was either disinherited accidentally or the will was invalid. An estate lawyer can help gather evidence that the deceased would have wanted their child to receive a share of their estate.
One of the most common arguments that estate and probate lawyers make is that the child would have been entitled to inherit if the parent had died intestate, meaning without a will. Under most state laws, children are entitled to receive half of their parent's assets, the other half going to the surviving spouse if the parent dies without having written a will. An estate lawyer may be able to persuade the probate court that intestacy laws should apply to give the child their fair share.
Another angle that an estate lawyer might take when contesting a will on behalf of a disinherited minor is by asserting that the will was invalid. If the will was not signed or written without the proper number of witnesses, or if it can be proven that the parent was unduly influenced to leave the child out of the will on purpose, then there may be legal grounds to declare the will invalid and use state intestacy laws to give the child their portion of the estate.
Parents who have concerns about making sure their children aren't accidentally disinherited should make sure to update their will regularly with the help of an estate lawyer.