A Few Quick Inheritance Questions...

What happens when someone dies and they want to will an annuity to someone? Can they at that time liquidate it or does it have to stay in annuity form?
Also, what happens when someone contests a will on the grounds that the deceased was not in their right mind when it was drawn up even though the family attorney determined that he was fully coherent? Can they prove otherwise? after the fact, and if so, how would they go about doing so?

  1. Not to put too fine a point on it, but when someone dies, they no longer are able to do anything about their annuities. Generally an annuity would have someone named as a beneficiary when it is set up. The method(s) by which it can be distributed to the beneficiary would be in the annuity contract.

  2. What do you mean “what happens”? If a person wants to contest a will, he/she would consult a probate lawyer in that jurisdiction to determine what the applicable laws are there. If you mean, “what is the process?”, you pay a filing fee and file a suit in Probate Court.

  3. Yes, people are able to prove through the various means allowed by the law in that jurisdiction that the testator lacked the capacity to formalize a will. It might be very difficult, however, depending on the laws of your jurisdiction. Generally, the deceased’s physicians and medical records are involved, and witnesses may testify. The lawyer’s word is not decisive, but may be important to the court. For example, was the lawyer one of the beneficiaries of the will?

  4. What do you mean, “after the fact”? After the will is written? After the testator is dead? After you file suit?

Bottom line: Consult a probate lawyer in your state.

I am a lawyer but I am not your lawyer. I do not represent you or anyone else at this time. I am probably not even licensed to practice law in your state, whatever that is. This is not legal advice. This is just common sense information provided on an anonymous message board.

Thank you for thjat info. I hyave been left an inheritance by my husband who passed away last year. He left me a reasonable portion of his estate, but his sons are not happy with the arrangement and they have contested the will. They are trying to prove that he was not of sound mind. He met with his attorney when I was not present, and I do not believe that the attorney would attest to his being quite sane at the time if he was not.
I am just curious as to how likely it is that they will prevail. I think it is very unlikely, but I wonder what, if anything, they could possibly have up their sleeves. They have not retained legal counsel as yet, and I wonder if they would even be able to do so. Isn’t it unlikely that any good lawyer would take on such a case?

Pretty much any lawyer will take on pretty much any case if you pay them enough…

I’d recommend a consultation with a local lawyer to get your questions answered if they’re keeping you up at night (or are otherwise a major source of stress).

It does not sound like the sons have a very strong case, but cases like this can turn on very small details sometimes.

Depends on the size of the estate. Multi-million dollar estates (J. Howard Marshall / Anna Nicole Smith) would draw much more attention (from lawyers) than smaller ones. Sounds like they’re taking a shot in the dark. It’s likely that the worst that could happen is the probate judge says “no” and they’re left with exactly what they have now.

Have you tried the lawyer referral service? Check with the bar association in your state. Many offer a service where you can consult with a local attorney for a modest fee ($50 - $100) where you *will *get “real” legal advice. Then if you choose to retain their services their normal fees apply. I suspect it would be $100 well spent in this situation.

If by “they have contested the will” you mean that they have appeared in probate court and are seeking to have the estate administered in any way different from that specified in the will, you should seriously look into getting a lawyer. As you are a beneficiary under this will, you could consider this turn of events as analogous to being sued.

As a matter of interest, who pays the legal fees? Obviously, the sons pay their own legal fees, but do the executors of the estate draw funds from the estate to defend the will?

Depending on the law of the jurisdiction, yes. The Estate will pay the attorney. When you say that they have contested the will, have they filed suit or are they just making noises? You need to speak to an attorney, namely one who didn’t play a part in the drafting of the will.

Bottom line is that you need to speak with a lawyer.

Thank you, my people…
I DO have a lawyer, and he went to court last week thinking that when he told the boys that if they prevail, then the will is asunder, meaning that I actually would inherit MORE than I received. I don’t want more, I just want what my hubby left me so I can move on with my life and forget that these guys even exist. That’s why I can’t understand why they are still going ahead with everything.
I am just curious and need some reassurance that these cases are very hard for the plaintiffs to prove. Even if they found someone who would say that my darling was nuts, what good can that do and how can that override the opinion of the attorney now?

Because they know how you feel, and are betting that if they make enough noise and trouble about it, you will eventually offer them some extra money to drop the suit and go away.

Sort of a legal form of blackmail.

All of this is really depends on the law of your jurisidiction, but I assume that they are alleging something like undue influence or that your husband was incompetent, correct?

Generally, these cases are somewhat difficult to prove, especially since the testator is deceased and can’t be examined. Depending on the state, you are in, the standard of proof may be higher than in a regular case. The testimony of the attorney who drafted the documents is important but not conclusive.

Is the estate reimbursing you for any attorney’s fees that have been incurred? If so, it comes out of their share as well. Is there a previous will that they are alleging should be probated that leaves them a larger share? Does this will have a no-contest clause? Are you the personal representative?

The cost of the attorney fees incurred should the estate be sued come out of the estate. So the boys are depleting their share as well as mine by suing me. This is another reason why I don’t understand why they ar doing this.
The will does have a no-contest clause, but one of the lads, the one who received the largest lot before hubby passed, did not receive anything further in the will, so he has taken upon himself to be the mouthpiece for the rest of them who would lose what they got if they made a fuss. There is no previous will of any kind.
If they go so far as to obtain a witness who would say that my husband was not of sound mind, I can certainly respond in kind and so on down the line. I would have no trouble finding witnesses to support my standpoint as well.
I just don’t get it. Thank you for your help.

P.S. I am the executrix of the will, and I am in MA.

In my humble opinion, most estate litigation cases are not really about the money. The client may say that it is, but ultimately, these boil down to unresolved family issues, issues of jealousy, or just plain spite.


And often in disappointed expectations…people expect inheritences to be worth a lot - and few of them are. So even when the distribution of assets was fair, they often feel cheated that there weren’t more assets. Since people often spend on the belief that “when Dad dies, I’ll be able to pay these bills” they paint themselves into an unfortunate corner.