When people want to challenge the validity of a last will and testament in North Carolina, they do so by initiating what is known as a caveat proceeding. This is a kind of civil lawsuit that determines whether or not a will that is in the process of being probated should be declared void. These proceedings are usually held when the testator may have lacked mental capacity or been under duress or undue influence when they prepared and signed the will.
Only interested parties can challenge the validity of a will in North Carolina. Interested parties include the beneficiaries named in the will and members of the testator’s family even if they are not named. Beneficiaries named in a prior, lost or destroyed will may also initiate caveat proceedings. When a will is challenged, all interested parties should be notified about the upcoming civil litigation.
Probate in solemn form
Most wills in North Carolina are probated in common form. Taking this path gives interested parties three years to initiate caveat proceedings. If a challenge seems likely, the executor of the estate may choose to probate the will in solemn form instead. When a Petition for Probate in Solemn Form is submitted, the clerk of the court schedules a hearing and informs all of the interested parties. Individuals who wish to challenge the will must then either initiate a caveat proceeding or appear at the hearing. If no challenge is made, the probate in solemn form becomes binding. If there is a challenge, the matter is referred to the Superior Court for a caveat proceeding.
Using trusts to avoid probate
Individuals who are concerned about their will being challenged could avoid this possibility by placing their assets in a revocable trust. These assets are not subject to probate because they are no longer owned by owned by the grantor. Using trusts also gives individuals more control over when and how their assets will be distributed to their beneficiaries. This could be an important consideration if beneficiaries have had difficulty handling money in the past or suffer from issues related to drugs or alcohol.