f
Follow us

Family Member Left Out of a Will: What Are Your Legal Options?

Family Member Left Out of a Will: What Are Your Legal Options?

Being left out of a loved one’s will can come as a shock, especially during an already emotional time. If you were expecting to be included and weren’t, it’s natural to feel hurt, confused, or even suspicious.

At Commonwealth Life and Legacy Counsel, we help families across Central Virginia—including Powhatan, Charlottesville, and surrounding areas—understand their rights when estate plans don’t go as expected.

In this post, we’ll walk through potential legal options for those excluded from a will, what Virginia law says about contested estates, and when it may be worth speaking with a probate attorney.

Initial Steps When Excluded from a Will

It’s tough to accept that you aren’t included in a loved one’s final instructions, but it’s very important to gather certain details before deciding on your path forward. One of the first tasks is to request a copy of the will. This lets you see who was included, what assets are up for distribution, and whether any unusual language stands out.

You might choose to consult with a probate attorney soon after. This professional can review potential legal routes and outline your rights. It also helps to assess the possible reason for your exclusion, although that can be difficult. Some folks are omitted by oversight, while others are left out due to events or fractured relationships. Clarity—where it’s available—may guide your plan of action.

Below is a quick checklist to keep your approach organized:

  • Request the official will from the probate court or executor.
  • Consider contacting a lawyer who knows probate practice.
  • Reflect on possible reasons the testator did not include you.

These steps can help you create a foundation for further choices. Once you gather enough data, you can decide whether to proceed with a will contest or explore other options.

Grounds for Contesting a Will in Virginia

In some cases, a will may be challenged if you have valid legal grounds and act within the required timeframe. A general sense of hurt feelings is not enough; there must be recognized legal causes. The state enforces strict guidelines to preserve each individual’s right to leave property on their own terms. You’ll need genuine evidence that improper circumstances shaped the will’s contents.

Below is a table illustrating some frequent grounds for challenging a will, along with possible supporting evidence:

Grounds for Challenge

Possible Supporting Evidence
Lack of Testamentary Capacity

Medical documentation, witness accounts of confusion, mental health records

Undue Influence

Evidence of isolation, threats, or manipulation, suspicious changes favoring one individual

Fraud

Proven forged signatures, misrepresentation of facts, or hidden documents

Improper Execution

Inadequate witnessing, missing or incorrect signatures, or other procedural errors

Lack of Testamentary Capacity

For a will to be valid, the person signing must comprehend the nature of their decisions. That includes understanding what they own, who would ordinarily inherit, and the ultimate purpose of the document. If advanced dementia, a brain injury, or another cognitive problem compromised that judgment, there may be grounds to claim the will is invalid.

Sufficient proof often involves medical analyses, statements from caregivers, or evidence that the person’s mental state was shaky at the time of signing. Timing matters. For instance, an older adult might have experienced lucid days punctuated by confusion, so you’d need to show the testator was impaired when the will took shape.

Undue Influence

Undue influence occurs when a person pushes a testator to include or exclude certain beneficiaries in an unfair manner. This may happen if the testator relies heavily on someone who controls their interactions, finances, or medication. Isolation is sometimes involved, especially if other loved ones cannot independently communicate with the testator.

Signs might include swift changes to a will soon after a new relationship is formed, large gifts to caretakers who had unusual power in the individual’s life, or intimidation disguised as caregiving. Witness accounts or authenticated records of intimidation may be relevant in such disputes.

Fraud

Fraud arises when the testator is deceived while shaping their will. In other words, the person forging the signature or presenting phony details influences the final instructions. Sometimes the scam involves telling the testator a falsehood to sway a bequest. In other instances, it might be forging the entire document.

A legal challenge based on fraud usually requires solid evidence, such as forensic analysis or statements by those who noticed suspicious acts. Courts treat these cases seriously, since the entire will can be invalidated if the fraud is confirmed.

Improper Execution

To follow Virginia law, a will must be in writing, signed by the testator, and witnessed by at least two qualified individuals who sign in the testator’s presence. If these steps are not met—or if a notary was required but omitted—then the document might fail in probate.

While small mistakes don’t always void a will, major deviations in format or the witnessing process can be grounds to suspend its authority. Each detail of how the document was executed matters, so gather any relevant paperwork to see if oversights occurred.

Rights of a Surviving Spouse in Virginia

Virginia law offers practical protections to spouses who discover they have been disinherited. Regardless of the will instructions, a surviving spouse can claim certain legal benefits to guard against total exclusion. Viewing these rights helps you are entitled to receive a portion of your spouse’s estate.

Elective Share

The elective share lets a surviving spouse take a share of the deceased spouse’s estate, even against the will’s terms. In many cases, this share is one-half of the augmented estate if the deceased left no children from outside that union, or one-third if children from a prior relationship exist. Assets in the augmented estate include real estate, bank or retirement accounts, and more.

For example, if a husband passes away, leaving an estate that tries to give all property to a sibling, the surviving wife can still invoke her elective share. She might ask for half of the augmented estate if that is the proper fraction. Familiarity with these rules is key to ensuring a fair chance at spousal inheritance.

Exempt Property and Family Allowance

Besides the elective share, the law also favors surviving spouses with “exempt property” allocations and a “family allowance.” These can include personal items like cars, household furnishings, and a modest allowance to address immediate day-to-day costs after the death. Spouses often rely on these benefits to cope with urgent financial changes.

Disinheritance of Children and Other Family Members

Unlike spouses, children in Virginia do not enjoy sweeping legal protections from exclusion. Parents can decide to omit one child and still leave an inheritance to others. If the parents’ wills are drafted carefully, siblings may receive unequal shares, or some may receive none. A child can attempt to challenge this on the grounds mentioned above, such as testamentary incapacity or undue influence.

Clarity in the language is vital for valid disinheritance. Most attorneys suggest stating the intention to exclude a child by name rather than omitting that child’s name altogether. This avoids arguments that the child was simply overlooked. If a parent is certain about disinheritance, it is wise to confirm it in writing with precise wording.

Other relatives—like siblings or cousins—lack guaranteed rights to a share of the estate. Disinheritance is lawful unless the family member is otherwise protected under specific spousal or dependent statutes. Still, a potential legal fight may unfold if that relative suspects wrongdoing in the will’s creation.

The Probate Litigation Process

When an individual decides to challenge a will, the lawsuit typically unfolds in the local circuit court. This journey demands careful preparation and can require considerable patience, especially when the estate is complex. Here are the main stages you may encounter:

  1. Filing a lawsuit: You must submit a formal complaint to the courthouse, stating that the will is void based on one or more recognized grounds.
  2. Gathering evidence: This includes medical evaluations, sworn statements, financial documents, or any other proof supporting your position.
  3. Settlement discussions: In some cases, both sides prefer to resolve the matter privately without a trial, particularly if litigation costs and delays might deplete estate resources.
  4. Trial: If parties do not settle, a probate judge (or jury, in some instances) weighs the evidence and decides whether to uphold or throw out the will.
  5. Outcome of the dispute: If the court deems the will invalid, the estate may pass under a prior will or under state law if no older will exists.

This process might stretch on if multiple parties come forward with competing claims. An experienced attorney can outline the obligations and deadlines to keep your case on track.

Alternative Methods for Passing on Assets

Although wills shape much of estate planning, there are ways to direct property outside of these formal instructions. Such methods reduce the chance of probate disputes and speed up asset transfers. Some folks rely on beneficiary designations or trusts to ensure certain heirs receive property automatically.

Beneficiary designations

Retirement accounts, life insurance policies, and transfer-on-death accounts can bypass probate. The named beneficiary is usually entitled to the asset, independent of the will. This method can remove confusion later, assuming all records remain accurate and current.

Living trusts

Assets within a living trust are governed by the trust terms, not a will. The trust maker can designate beneficiaries, conditions of distribution, and even back-up provisions if a primary heir cannot inherit. A trust also offers privacy, since trust assets typically do not become part of the public probate record.

Secure Your Family’s Future with Thoughtful Estate Planning

Handling estate matters after a loss can feel overwhelming, but you don’t have to do it alone. At Commonwealth Life and Legacy Counsel, we offer clear, compassionate guidance to help you make informed choices. Call us in Central Virginia at 434-589-2958 or in Powhatan at 804-598-1348, email info@winget-hernandez.com, or visit our Contact Us page. We’re here to help you create a plan that honors your loved one and secures your family’s future.