Drafting a Last Will and Testament provides you with the ability to control what happens to your property after your death. The terms you include in your Will are intended to be legally enforceable, and once a California court has authenticated the document, the Executor must carry out those instructions. Despite this, the probate process allows an “interested party” to challenge the validity of a Will. A Will contest can delay probate for months, consume significant estate assets in legal fees, and create conflict among family members. For these reasons, many people want to know what steps they can take to reduce the chance of their Will being challenged. With that in mind, the Los Angeles attorneys at Schomer Law Group, APC explain common steps you can take to discourage people from pursuing a California Will contest after you are gone.
The following strategies can help discourage a Will contest in California and increase the likelihood that your final wishes will be honored.
- Work with an Experienced Estate Planning Attorney.One of the best safeguards against a Will contest is working with a skilled estate planning attorney from the very beginning. While online templates and do-it-yourself kits may appear convenient, they often leave important issues unresolved or fail to meet California’s strict execution requirements. An attorney can ensure that your Will complies with state law, includes the necessary formalities, and clearly reflects your intentions. Professional drafting also reduces the risk that someone could later argue that mistakes, ambiguities, or improper execution make your Will invalid.
- Make Sure Your Will Is Properly Executed. California law requires specific formalities for a Will to be valid. In most cases, the Testator must sign the Will in the presence of two competent witnesses, who also sign in the Testator’s presence. The witnesses should be disinterested parties, meaning they are not beneficiaries under the Will, to avoid claims of undue influence or conflict of interest. By strictly adhering to the legal requirements for execution, you reduce the opportunities for a contestant to argue that your Will is defective.
- Consider Including a No Contest Clause. A no contest clause is a provision that penalizes anyone who challenges your Will by disinheriting them if they file an unsuccessful claim. For a no contest clause to have the desired effect, the potential contestant must receive something of value in your Will. Otherwise, they have nothing to lose by filing a challenge. California Probate Code sections 21310–21315 limit when a no contest clause may be enforced. The court will only apply the clause if a Will contest was brought without probable cause, meaning the challenge had no reasonable legal basis. While this standard prevents the use of no contest clauses against good faith challenges, it can be an effective deterrent to frivolous contests.
- Document Your Testamentary Capacity. One of the most common grounds for contesting a Will is an allegation that the Testator lacked the mental capacity to understand the nature and consequences of creating a Will. To minimize this risk, you can take proactive steps to document your capacity at the time of execution. For example, you may obtain a letter from a physician confirming your cognitive health. Some people even choose to record a video of themselves discussing their decisions in a calm and coherent manner. Taking these steps can provide powerful evidence to counter claims of incapacity.
- Address Potential Claims of Undue Influence. Another common basis for a Will contest is the allegation that someone exerted undue influence over you when the Will was created. This often arises when one beneficiary receives a substantially larger inheritance than others. To reduce the likelihood of this claim, you can discuss your intentions with your attorney privately, without potential beneficiaries present. You can also avoid having the primary beneficiary serve as a witness to the Will and provide a written explanation for any unequal distribution, so the court understands your reasoning. By taking these precautions, you make it more difficult for someone to claim that your decisions were not your own.
- Communicate with Your Family. Family conflict often fuels Will contests. While you are not legally required to disclose your estate plan to your family, communicating your decisions can sometimes prevent disputes later. Explaining your intentions while you are alive gives your loved ones an opportunity to ask questions and understand your reasoning. Even if some individuals are unhappy with your choices, transparency reduces the element of surprise that often triggers litigation after death.
Can We Help You Prevent a California Will Contest?
For more information, please join us for an upcoming FREE seminar. If you are interested in taking steps to discourage people from pursing a California Will contest after your death, contact the experienced Los Angeles estate planning attorneys at Schomer Law Group APC by calling (310) 337-7696 to schedule an appointment.
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