QUESTION

If I am not part of a lawsuit to contest a will, can I still benefit if they are successful and I am a rightful heir?

Asked on Nov 18th, 2014 on Estate Planning - California
More details to this question:
My uncle recently died and left a will that some of my cousins have put into question. He has bequeathed a large amount of money to people that my cousins think have scammed him. My cousins want to hire a lawyer and contest the will. They claim that only those cousins that join the lawsuit and contest would then benefit from any proceeds that are recovered if the will is proven false. I find this hard to believe because if the will is proven false then I would assume that means he died without a will and his estate will be divided properly among his familial heirs according to law. Which is correct? Would any proceeds that are reclaimed only go to those who pay for a lawsuit to proceed or would the proceeds be divided as if there had been no will? I ask this because I don't think they have a case to question the will and I don't want to be a part of an extended and expensive useless fight but if they win I'm wondering if I would be cut out of any gains I would have been entitled to. Thank you.
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5 ANSWERS

Civil Litigation Attorney serving Ventura, CA at The Law Office of Robert I. Long
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I think you answered your own question: You are not willing to pay-to-play. That means you are willing to accept things the way they are. If the present scheme does not include you, then you can't do worse than that if the contestants prevail. Who knows, you might even get a windfall.
Answered on Dec 19th, 2014 at 6:36 PM

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Taxation Law Attorney serving Glendale, CA at Irsfeld, Irsfeld & Younger LLP
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If he didn't have a previous will, than you would be correct.
Answered on Nov 20th, 2014 at 1:48 PM

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If the matter went to trial and there was a judgment that the Will was invalid, then the Will would be totally invalid as to everyone. There either is a valid Will or there is not one. You do not have to be part of the lawsuit to benefit from its results. The probate judge would probably have the power to award recovery of their costs [which may or may not include attorney fees] to the litigating parties as they have caused a common fund for the benefit of all heirs. Even if the successful contesting of the Will did not apply to the non-litigating heirs, they could use the judgment as res judicature against the losing party. The problem you may have is the suit will probably be settled before any judgment or verdict issues, and the successful litigating heirs may not be willing to include you unless you pick up a pro rate share of all their costs, including attorney fees. But that would put you in no worse a situation then if you hired an attorney who took an active role in the suit [if your attorney merely files suit and lets the other attorneys do all the work, then his/her fees should be substantially less. You have to make a guess as to how likely it is that the possible scampers will be willing to settle for a substantial amount.
Answered on Nov 20th, 2014 at 2:19 AM

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Trusts Attorney serving Sacramento, CA at Law Office of Victor Waid
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If there is no will, then direct descendants down two layers if there are grandchildren whose parent has died before the grandparent estate is probated. If there is a will, then to the persons named in the will inherit. Only the alleged executor/administrator can bring a lawsuit on behalf of the estate; others outside who want to sue, must file for authority from the court to sue, and the executor/administrator can join or reject the suit. You are advised to seek the counsel of a probate litigation attorney to represent you regarding your beneficial interest in the estate. This is called beneficiary representation, and the attorney may take the matter on an hourly rate or a percentage of your alleged share of the estate in representation of you. Do not agree to pay costs with the cousins unless you have had good legal advice, and be prepared to pay for the advice.
Answered on Nov 20th, 2014 at 2:16 AM

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Edwin K. Niles
There's another reason why you might not wish to participate. If the will was drawn by a lawyer it probably has an anti-contest clause, which says that if anyone contests they get nothing. Of course if the contest is successful the will gets thrown out anyway, so the clause is meaningless. You are correct. If the will is found to be the result of undue influence, the entire will would probably be found to be invalid. The estate would then go to the decedent's heirs. Without more facts, however, it should be said the the court could find a partial invalidity.
Answered on Nov 20th, 2014 at 2:13 AM

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