What to Do When You're Left out of a Will

What to Do When You're Left out of a Will

By ANDREW BEATTIE Updated May 24, 2022

Reviewed By Andy Smith  Fact Checked By Kirsten Rohrs Schmitt

Being left out of a will is not a situation most people want to be in. But sometimes when a person dies and their will comes to light, its contents throw survivors for a loop. The will can exclude people who had assumed they would be included, or in some cases, who were told that they would be included. If you are left out of a will, there are some time-sensitive steps you should take to at least clarify what has happened—and perhaps contest it. In most cases, you must prove coercion, diminished mental capacity, or outright fraud to have a will's terms dismissed.

KEY TAKEAWAYS

If you are left out of a will and believe that you should contest it, prepare to face an uphill battle to get a portion of the estate.

Be certain that contesting the will makes financial sense, and that the potential gain will far outweigh the legal costs.

Also make sure that contesting the will makes emotional sense as the process is a long and often stressful one involving multiple steps.

To succeed, you must prove coercion, diminished mental capacity, or outright fraud—all difficult to prove, no matter your personal convictions.

Talk with your attorney about how realistic your chances are of getting the will invalidated and other alternatives that may exist.

Judge the Costs

Before you put a retainer on a lawyer, engage in some sober second thought. If you are not family and were never named in a previous will, you have no standing to contest the will. If the testator (the deceased) discussed an inheritance with you previously, write down as much as you can remember. Using this, estimate the dollar value (whether money or possessions). If it was never discussed but was implied, you will need to give a high and a low estimate on what you could have reasonably received based on your knowledge of the testator's estate.

If this amount isn't enough to cover the cost of a consultation with an estate lawyer, walk away. Even if it is twice as much as the retainer, walking away may still be the better course as some of the worst estate fights cost more in legal fees than the inheritance. So, think carefully before you lawyer up.

Make sure contesting a will is a winnable and financially smart battle—being left out of a will is terrible, but wasting time, money, and emotions fighting a losing battle is worse.

Get a Copy of the Will

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