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A Will is a legal document that is used to express the Testator’s (creator’s) wishes regarding his/her estate assets and what should be done with them upon the Testator’s death. Gifts made in a Will may be general or specific. Along with making gifts of estate assets, a Will offers the parent of a minor child the only official opportunity available to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed. Your Last Will and Testament also allows you to decide who will oversee the administration of your estate when you appoint an Executor
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The person appointed as Executor in the Will typically initiates the probate of the decedent’s estate shortly after learning of the death. Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed.
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Only certain people have the legal right to contest a Will (referred to as a Will “caveat” in North Carolina). In North Carolina a contestant must have “standing,” meaning the legal right to initiate the legal proceeding aimed at contesting the Will. Only an “interested” person (or entity) has standing in a Will contest. This typically refers to a beneficiary named in the Will, a beneficiary under a previous Will, an heir under the state intestate succession laws, or possibility a creditor of the estate.
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Yes, but a spouse may not need to contest the Will because a surviving spouse is legally entitled to an “elective share” of the estate of a deceased spouse in North Carolina.
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Yes. You must initiate a Will contest within three years of the opening of probate.
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Being unhappy with the terms of the Will or with the amount of your inheritance does not entitle you to contest a Will. For a Will contest to move forward in court you must allege (and ultimately prove) one of the following grounds on which a Will can be invalidated in Florida:
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- Lack testamentary capacity, meaning the Testator lacked the necessary mental competency to make a Will.
- Undue influence, meaning the Testator was compelled or coerced to execute a Will by applying improper pressure or persuasion.
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Formally referred to as an “in terrorem clause,” a no contest cause works by forfeiting the inheritance of a beneficiary if that beneficiary contests a Will. Although not all states recognize and enforce no contest clauses, North Carolina generally does.
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If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid, and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets.
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Contact Us
The North Carolina estate planning attorneys at Clarity Legal Group are dedicated to helping you with all your estate planning needs, both now and in the future. Contact the team today by calling 919-484-0012 or contact us online.
