Estate law is not an area that lends itself well to black-and-white answers. Statutes vary from state to state. Compounding that is the desire of courts to preserve the deceased’s wishes at all reasonable costs. Judges can and do waive statutes of limitation for contesting a will if they believe there is good cause, and most state legislatures have layers built into their rules to account for every possible circumstance.
Until the executor of a will has presented it to the court for probate, you can contest a will at any time. In most states, you do this by filing a “caveat” or objection with the probate court. If the court clerk later receives the will for probate, she cannot accept it because of your caveat. The document puts the court on notice that you don’t think the will is valid. The court will hold a hearing to address your concerns, and if you win, it won’t admit the will. If you lose, the court will accept the will as valid and begin the probate process. The executor has the burden of proof to convince the court that your objection is unwarranted.
Read More: Can You Contest a Will After Probate?
If the executor successfully submits the will for probate before you’re able to make an objection, the clock begins ticking on your statute of limitations to contest it. Individual states have varying time limits for when an executor must submit the will. This is usually four years, but it might be more or less depending on your jurisdiction and the exceptions built into your state’s legislative code. If the executor files the will at the eleventh hour, you usually have years after that to contest it.
When the statute of limitations begins running with the date of probate, you have two years to file a will challenge in most states. In Pennsylvania, however, it is usually only one year. The burden of proof shifts from the executor, who would have had to prove that your caveat was unfounded, to you. After a will has entered probate, you must convince a judge to set it aside.
Because a person who has not reached his state’s legal age of majority has no standing to initiate a lawsuit, the beginning date for a minor to challenge a will is the day he becomes an adult. In most states, this is age 18. If the executor enters a will into probate when the child is 12 years old, he must wait six more years to file an objection, then he usually has an additional two years before his time runs out. Realistically, however, the estate would probably have been disbursed by then if his parent didn't make the challenge for him.
Most states do not impose a statute of limitations if you want to challenge a will because you’ve located one written after the date of the one that's been admitted to probate. Generally, the four-year time period, beginning with the testator’s death, would apply in this case. You’d have that amount of time to submit the new will for probate. Doing so automatically challenges the first will. Most states do not consider this a will contest, so the two-year time period is generally waived.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.