Family members can contest a will, but only those with a direct financial stake in the estate have the legal right to do so. Disagreeing with how a relative divided their property is not enough. To bring a challenge you need what courts call standing, a recognized legal ground for saying the will is invalid, and you need to file within a short window after probate opens — sometimes only a few months.
Who in the Family Can Actually Challenge
Courts limit will contests to people who would gain or lose money depending on the outcome. The legal term is “interested party.” Roughly half the states define this to include heirs, spouses, children, beneficiaries, and others with a property right or claim against the estate. For family members, standing usually comes from one of two places.
The first is intestacy. If the will were thrown out entirely, state law would distribute the estate under default rules that favor the surviving spouse and children first, then reach out to parents, siblings, and more distant relatives. If you would inherit something under those default rules, you have standing to argue the will should not stand.
The second is a prior will. If an earlier will left you more than the current one does, you can challenge the newer document and ask the court to enforce the older one. Your argument is that the later will is invalid and the previous one still controls.
An adult child who was written out entirely but would not inherit under intestacy — because a surviving spouse takes everything, for example — may still have standing if a prior will named them. Standing turns on whether the outcome of the contest changes what you receive, not on how close the family relationship was.
If You’re the Surviving Spouse, Look at the Elective Share First
Before a surviving spouse files a contest, there is usually a simpler path. Most states give a surviving spouse an elective share: the right to reject whatever the will provides and instead claim a guaranteed statutory portion of the estate. It exists specifically to prevent one spouse from disinheriting the other.
The percentage varies by state, running from roughly one-third to one-half, with some states using a sliding scale tied to the length of the marriage. A few states calculate the share against an “augmented estate” that pulls in certain lifetime transfers and non-probate assets like jointly held property.
Claiming the elective share requires filing a written election with the probate court, typically within six months to a year of the will being admitted, depending on the state. If you were left little or nothing by your spouse, the elective share can accomplish what a contest is trying to accomplish, without the cost, uncertainty, and family damage of litigation.
Legal Grounds a Court Will Accept
Feeling that the will is unfair is not a legal ground. Courts require a specific basis, and the person challenging the will has to prove it.
Lack of Testamentary Capacity
To make a valid will, the person signing it must understand what they own, who their close relatives are, and what signing a will actually does. The bar is not high. Someone with serious health problems or cognitive decline can still meet it. What matters is their mental state on the day they signed. Medical records, testimony from the drafting attorney, and observations from people who saw the person around that time are the usual evidence. A dementia diagnosis does not automatically invalidate a will.
Undue Influence
Undue influence is the ground raised most often in family disputes. It means someone overrode the will-maker’s free choice so that the document reflects the influencer’s wishes rather than the deceased’s. It is also one of the hardest grounds to prove, because the pressure usually happens in private.
Courts look for a pattern: a person in a position of trust — an adult child controlling access to a parent, a caregiver, a new romantic partner — who isolated the will-maker from other family and was present around the estate planning. If you can show a confidential or fiduciary relationship, an opportunity to pressure the will-maker, and a benefit under the will, many states shift the burden of proof onto the accused beneficiary, who then has to show the will was made freely. That shift is often where these cases turn.
Improper Execution
Every state has formal rules about how a will must be signed and witnessed. The common standard is that the will be in writing, signed by the person making it, and signed by at least two witnesses. Some states require the witnesses to be present at the same time or to watch the signing. If those formalities were skipped — only one witness signed, or the signature was added after the witnesses left — the will can be thrown out on procedural grounds alone.
About half the states also recognize handwritten (holographic) wills, which may not require witnesses but must be entirely in the will-maker’s handwriting and signed. Their informal nature makes them a common target for contests.
Fraud or Forgery
Fraud covers situations where the will-maker was tricked about what they were signing, such as being told a new will was a financial form. It also covers lies that changed the will-maker’s decisions, like falsely telling a parent that one of their children had died. Forgery of the signature is a related ground, and handwriting experts are commonly used to evaluate disputed signatures.
A Later Valid Will Exists
A newer, properly executed will generally revokes an older one, either by express language or by being so inconsistent with the older document that both cannot stand. If a more recent valid will surfaces after probate has opened on an older one, bringing it forward is itself a form of contest: the argument is that the wrong document is being probated.
The Trap: No-Contest Clauses
Many professionally drafted wills include a no-contest clause, sometimes called an in terrorem clause. It says any beneficiary who challenges the will forfeits their inheritance. If you are already receiving something and you contest unsuccessfully, you can walk away with nothing.
Enforceability varies. The Uniform Probate Code, which has influenced legislation in many states, makes a no-contest clause unenforceable if the contestant had “probable cause” to bring the challenge — a reasonable basis to believe the will was invalid. Most states that enforce these clauses recognize some version of that exception. Florida refuses to enforce no-contest clauses at all.
Where they are enforceable, the risk is real. If you are already named as a beneficiary, get a candid read on the strength of your case from a probate attorney before filing anything. A weak challenge can cost you what you were already set to receive.
How Long You Have to File
Deadlines are short. Across most states, the window runs from as little as three months to as long as two years after the will is admitted to probate or after you receive formal notice of the proceedings. Some states start the clock when the will is filed; others when notice is personally served. Miss the deadline and the claim is almost always barred, no matter how strong the evidence.
Narrow exceptions exist. Fraud or concealment that hid the grounds for a contest can extend the deadline in many states. The clock may also pause for minors or people who are legally incapacitated, giving them time once they turn 18 or regain capacity. Courts read these exceptions strictly. Acting quickly once probate opens is the safest approach.
How a Will Contest Actually Works
The process starts with a formal petition or complaint filed in the probate court handling the estate. It identifies you, your relationship to the deceased, the legal grounds for the challenge, and what you are asking the court to do. Filing fees are usually a few hundred dollars.
Then comes discovery, where both sides exchange evidence. You can request documents (medical records are central in capacity and undue influence cases), take depositions of witnesses under oath, and send written questions called interrogatories. The drafting attorney, the witnesses to the signing, caregivers, and family members are common deposition targets. Discovery is where most of the legal fees accumulate.
Most will contests settle before trial. Many courts require or encourage mediation, and settlement often makes sense: trial outcomes are unpredictable, fees keep growing, and the estate is paying to defend the executor, which means every dollar spent on litigation is a dollar that will not reach any beneficiary.
If the parties cannot settle, the case goes to trial. Both sides present evidence and witnesses, and the court decides whether the will is valid.
What Can Happen at the End
If the contest fails, the will stands and the estate is distributed according to its terms. If a no-contest clause applies, the challenger may also lose whatever the will gave them.
If the contest succeeds, what happens next depends on the finding. A court can invalidate the entire will, sending the estate through intestacy (generally to spouse and children first, then parents, siblings, and more distant relatives). If a valid earlier will exists, that document is admitted instead.
Courts can also strike only specific provisions while leaving the rest intact. Partial invalidation typically happens when the problem — undue influence over one bequest, for example — affected only part of the document. If the tainted provisions are too entangled with the rest to separate cleanly, the whole will falls.
The most common real outcome is a negotiated settlement that gives the contestant more than the will provided but less than a total win would yield. Settlements avoid trial costs, spare the family a public fight, and keep the dispute out of the court record.
What It Costs
Contests are expensive, and costs climb fast in discovery. Probate litigation attorneys typically charge $250 to $500 an hour or more. A straightforward contest can still run into tens of thousands of dollars. A complex one with expert witnesses, extensive depositions, and a trial can reach the hundreds of thousands.
Some attorneys take these cases on contingency, collecting a percentage of the recovery instead of billing hourly. Contingency fees in probate litigation commonly run around one-third if the case settles, rising to 40% at trial. That shifts the financial risk to the attorney, but you give up a substantial share of anything you recover.
Remember that the estate typically pays for the executor’s defense, which reduces the pool available for distribution. Even a successful contestant may end up with less than expected after all the legal fees are paid. The math only works when the potential recovery clearly exceeds the likely costs and the legal grounds are strong enough to produce settlement leverage.
How Taxes Treat What You Receive
Property you receive through an inheritance — whether under the original will, a court order after a successful contest, or a settlement — is generally not taxable income. Federal tax law excludes from gross income the value of property acquired by bequest, devise, or inheritance.1Office of the Law Revision Counsel. 26 USC 102 – Gifts and Inheritances
Settlement payments in a will contest are evaluated by what they replace. Because a contest settlement replaces an inheritance, which is already excluded from income, the settlement is generally treated the same way. The IRS looks at the nature of the underlying claim, not just that money changed hands through litigation.2Internal Revenue Service. Tax Implications of Settlements and Judgments
Federal or state estate taxes may apply depending on the size of the estate, but those are paid by the estate before distribution, not by beneficiaries as income tax. Any income the inherited assets generate after you receive them — interest, dividends, rent — is taxable in the usual way.