What to Do If You're Left Out of a Will
August 18th, 2021
When a family member dies, you may look to that person’s possessions as a way to remember them or to provide previously unavailable financial opportunities or relief. Finding out you were left out of a Will can be surprising and heartbreaking. If you believe your family member would have wanted you to be provided for, you may need to consider challenging the Will to receive a fair inheritance.
Can Your Family Legally Disinherit You?
Each person has the authority to decide what will happen to their property after they pass away (and their final debts have been paid). They do that by writing a Last Will and Testament. Florida probate law sets out the default rules for which family members will inherit a person’s assets or property after they pass away. But these intestacy laws are a fall-back position the courts use only when the person died without a valid Will. If the family does submit a Will to the Florida probate court, its terms will generally control who does and does not receive an inheritance.
Special Rules for Spouses
Most married couples want to provide for one another after their death. However, sometimes, like in cases with an estranged spouse, a marriage later in life, or a blended family, one spouse may not update his or her estate plan to provide for the other. Florida’s Spousal Elective Share and Homestead Exemption prevents your spouse from completely disinheriting you. Even if you are left out of the Will, as a widow or widower you can elect to receive 30% of the “elective share” and have rights to certain real and personal property.
I Was Left Out of the Will, Now What?
Being left out of a Will can be disappointing and can damage your relationship with other family members who are set to inherit. However, just because your name isn’t in the Will doesn’t mean you won’t receive anything.
When Your Family Leaves You Out By Accident
Before you hurry to file a Will contest, take a close look at the Will with your probate attorney. Remember that, often, Wills are written years before a person dies. They may not be updated when life events -- like births, marriages, or adoptions -- happen. That’s why lawyers often write estate plans using categories such as “my children” rather than listing each child by name.
When your family leaves you out of the Will by accident, you may still be able to inherit based on the intent of the grantor (the person who died) to distribute assets to a class of people that would include you. (i.e. “my children and their spouses”).
Pretermitted Spouse or Children
Under Florida law, special rules also apply in the event of a “pretermitted” spouse or child--that is, when a person marries or has children born or adopted after making the will in question. In those situations, with certain exceptions, the pretermitted spouse or child is entitled to receive a share of the estate equal in value to what they would have received if the testator had died intestate.
When Your Family Excludes You on Purpose
In other cases, a person’s Will may include your name, but only to explicitly exclude you from inheriting under it. Or you may fall somewhere in the middle, where you are excluded because the Will was not written with categories, and all your siblings are listed, but you were omitted. When that happens, your only option may be to contest the Will, asking the court to set it aside and distribute your loved one’s estate according to the Florida intestacy laws or a prior will (if one exists).
How to Contest a Will and Win
- Decide if You Want to Contest the Will
Contesting a Will isn’t easy, especially when you are left out of said Will. Hiring an attorney to review the Will and the circumstances under which it was signed can be expensive, and that can eat into your anticipated inheritance. Then there is the emotional expense. When family members fight over inheritance it can poison family relations for years. Before you decide to hire an attorney, be certain that winning the Will challenge lawsuit is worth the financial and emotional cost.
- Hire a Will Contest Attorney
There are a lot of technicalities involved in challenging a Will. As the Will challenger it will be up to you to prove that the document provided was invalid or entered under circumstances such as:
- Mental incapacity
- Insane delusion
- Undue influence
Many of these legal bases require working with experts and digging into circumstances that existed decades earlier. You should not try to do it alone. Work with an experienced Will contest lawyer to investigate your claims, evaluate your chances, and build your case.
- Get a Copy of the Will
You are going to need a complete copy of the Will. This may be on file with the probate court, or stored in your loved one’s home. If you are claiming that the most recent Will is invalid, you will also need copies of what came before to show the court what changes were made.
- File a Will Challenge
You don’t have much time to build your case, either. Depending upon the form and manner of service, you will generally have either 20 days or 3 months to file your Will challenge after your receipt of probate documents. While you can develop your case further after you file the Will challenge but before final hearing, you will need to act quickly to preserve your claim.
- Consider Mediation
Remember that the people on the other side of most Will challenge lawsuits are family. Sometimes, everyone, or almost everyone, involved may believe you are entitled to something, even if you disagree on what or how much. You may be able to avoid the time, expense, and hard feelings of a Will contest trial by attending mediation with the heirs listed in the Will. Your attorney can help you reach a compromise that will honor your loved one and mend family ties.
Contesting a Will can be technically and emotionally difficult. You need an attorney who can balance legal expertise with sensitivity to family dynamics. At Harrison Estate Law, P.A., our experienced estate and probate team understands when and how to stand up for your interests if you have been left out of the Will. We can help you investigate the grounds to challenge the document and negotiate on your behalf with your family. Contact us here or call 352-559-9828 to get help today.