Planning your estate can seem like an exercise in stating your wishes in writing through the utilization of a will or a trust. You simply determine what you have to pass along, and you decide on the way that your resources will be distributed to your loved ones.
This is certainly the basic idea, but there are some nuances to take into consideration. One of them is the potential for an estate challenge, we will look at some of the details in this post.
Last Will Contests
When will is used as a vehicle of asset transfer, it usually admitted to probate after the passing of the testator. We are adding the qualifier “usually” because estates that are valued at $166,250 or less can potentially be settled through the utilization of a small estate affidavit.
The executor is a person or entity that acts as the estate administrator while the court supervised probate process is underway. It is possible to come forward during probate to contest a last will.
One basis for a will challenge would be the contention that it was not properly executed. In order for a will to be valid in California, you must sign it in front of two witnesses. The witnesses have to sign the will in the presence of one another. Your witnesses should be people that are not named as inheritors in the will.
Lack of Capacity
In order for a will to be valid, the testator must be of sound mind at the time that is executed. Incapacity is quite common among elders because of the widespread nature of Alzheimer’s disease, so this is a very possible scenario.
Fraud, Forgery, and Undue Influence
An interested party could argue that a will should be invalid because it was fraudulently executed. For example, a fraudster could misrepresent circumstances to the testator when a will is being created.
Undue influence that does not necessarily include acts of fraud would be another ground for a will challenge. Of course, if someone felt as though they can prove that the signature on a will was forged, the court would hear the argument.
The Introduction of a More Recently Executed Will
In some cases, a person will execute multiple wills over time. The most recent will would be the one that is valid, and this is why you hear the term “last will and testament.”
Challenging a Living Trust
Some people are under the impression that a living trust cannot be challenged because it would not go through the probate process. While there is no built-in contest mechanism during the typical administration process, it is still possible to file a lawsuit to challenge the terms of a living trust.
You can include a no-contest clause in your will or trust if you think that someone may not be happy with some of your inheritance distribution decisions. This would completely disinherit anyone that decides to come forward to issue an estate challenge.
It is wise to take a step back and see the big picture if you have these concerns. If you disinherit someone entirely, and you include a no contest clause, the person that have nothing to lose. They could go forward with an estate contest and they would not be risking anything (except legal fees).
On the other hand, if you leave a reasonably significant inheritance that may not be completely satisfactory to someone, would they take the chance of losing it? Most people would probably take the safe route and swallow their dismay.
We would recommend that you think long and hard before you make choices that will definitely upset someone with an interest in your estate. A lot of acrimony during this difficult time can be tough for the family to handle, and there can be ongoing resentment between siblings and others.
This is not to say that it may not be warranted, and at the end of the day, the choice is yours.
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Schedule a Consultation!
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