When you consider contesting a last will and testament, you might also have to consider contesting changes to certain additional assets—for example, an account that has had a change in beneficiary designation or a change to joint account status.
A Common Scenario for Contesting a Last Will and Testament and Beneficiary Change
Let’s go back to the example of Katie’s situation. Katie discovered that the beneficiary designation of her father’s savings account had been changed. The beneficiary was no longer Katie—it was now her stepmother. Katie was afraid that her stepmother would start spending all the money in her father’s savings account. So, Katie needed to take legal action immediately to contest both the last will and the saving account’s beneficiary designation change.
Probate Assets vs. Non-Probate Assets
Challenging a last will and testament only impacts those assets that are “probate assets.” Probate assets need a court-supervised probate process in order to get passed on to the beneficiary. Non-probate assets can be given directly to the beneficiary without a court process.
An account is likely to be considered a “non-probate asset” if:
- The account has a changed beneficiary designation or
- Right before the decedent’s death the account was changed to a joint account
If there are problems with non-probate assets, then challenging the last will and testament is not your only concern. You will also need the Circuit Court to determine if the change in beneficiary designation or the creation of the new joint account is valid.
Four Ways to Contest a Last Will and Testament and Beneficiary Change
The four ways to contest a last will and testament also apply to beneficiary changes:
- The signature is fraudulent.
- The document was not executed properly.
- The decedent was incompetent at the time it was signed.
- The decedent was subject to undue influence when the document was signed.
Did a financial power of attorney change the beneficiary?
It is common for a financial power of attorney to change a beneficiary designation. It is important to know if that is the case in your situation. If so, then the issue becomes whether or not the financial power of authority had the authority to make the change. Sometimes the financial power of attorney signs documents when their power of attorney is invalid. Or sometimes the power of attorney exceeds their authority, which would invalidate their change in beneficiary designation.
Contest the Beneficiary Change Before It’s Too Late
If you’re going to contest a change in beneficiary designation or the creation of a new joint account, then you need to consider the timing. While there is the normal statute of limitations to file for Circuit Court relief, a would-be beneficiary could have access to the account as soon as they acquire the death certificate. Then, nothing would prevent them from spending the account’s money.
If you wait too long to file an action in the Circuit Court, then you could face this situation: you win the case, only to see that the money has already been spent. Then you have to engage in collection efforts against the wrongdoer.
The better course would be to immediately file suit to put the wrongdoer on notice. It would also make sense to ask for “injunctive relief” to freeze the account. However, this often requires immediate action after the decedent passes.
Lawyers Help to Contest a Will and Beneficiary Change
Challenging a beneficiary change or a change of an account to joint ownership status can be a complex area of the law. These challenges should only be considered by experts in this area of law. It is important to know what to expect.
For some families, it is unclear in the beginning if they have a rock-solid case, but they have strong suspicions that wrongdoing occurred. In those cases, it is not unusual to engage in litigation to obtain the needed bank account information (i.e. signature pages) and medical records in order to formulate an opinion after this information is obtained.
Often, it is only through litigation that you will be able to access the information that is critical to winning your case. It is not uncommon to see beneficiary designations changed once a decedent was in a weakened condition. Let us fight with you to correct this wrongdoing.