In California, there are basically four reasons people might challenge the validity of a will. If the will was not properly signed, if there is a question of whether the person who made the will had the capacity to do so, if there is any suspicion that the person was unduly influenced or induced to create the will through fraud, then the will may be contested (or challenged) in court. Although these grounds may be difficult to prove in court, having to deal with these issues is something that most people want to avoid. One option to consider is including a “no contest” clause in your will. Let our Los Angeles probate lawyers explain how this works.
Dealing with family disputes about inheritance
In some states, testators can include what is referred to as a “No Contest Clause” in their will. A No Contest Clause effectively discourages heirs from contesting inheritances because doing so would mean they are no longer entitled to receive any portion of the inheritance. Essentially, no one wants their loved ones to waste time arguing over their personal property. But, if you plan ahead, with the assistance of one of our Los Angeles probate lawyers, you can avoid some issues that can arise when it comes time to distribute inheritances, including family heirlooms. However, the effectiveness of these clauses can be tricky.
California’s law regarding the “no contest” clause
In 2010, California modified its laws relating to “no contest” clauses which limited their effectiveness significantly. Under the new law, there are only three situations where a “no contest” clause will be enforced:
- When there is a “direct contest” to the will without probable cause
- When there is a challenge to a transfer of property and the clause expressly applies
- When there is a creditor’s claim and the clause expressly applies
These changes to the law are retroactive, which means they apply to all instruments that became irrevocable after January 1, 2001.
Planning ahead to avoid probate litigation
When a family member or beneficiary disagrees with how estate property is being distributed, the likely result is probate litigation. That means someone who has an interest in the estate brings their disagreement to the court to resolve. However, if you take certain steps now you may be able to avoid many of the common disputes through proper estate planning. If you find yourself in the middle of a will contest and need legal assistance, one of our Los Angeles probate lawyers can help.
Primary reasons for probate litigation in California
Despite the intentions that most families have to remain civil with one another after the divorce of a family member, will contests and trust disputes are quite common. When a family member disagrees with how estate property is being distributed, the likely result is probate litigation. That means someone who has an interest in the estate brings their disagreement to the court to resolve. However, if you take certain steps now you may be able to avoid many of the common disputes through proper estate planning. If you find yourself in the middle of a will contest and need legal assistance, one of our Los Angeles probate lawyers can help.
What are the most common reasons a will is contested?
There are essentially four legal grounds for challenging the validity of a will: (1) it was not signed properly, (2) there is a question about testamentary capacity, (3) there is a suspicion of undue influence in executing the will, and (4) the testator was fraudulently induced into creating the will or including certain provisions. Each of these grounds can be difficult to prove. Contesting a will can also be a very expensive court process, yet that fact does not discourage everyone.
Creating a self-proven can help to avoid contested wills
One way to ensure that your family will not be caught up in a legal battle after your death, at least regarding the validity of your will is to create a “self-proving” Will. This type of Will, which is recognized in California, essentially takes the guesswork out of Will authenticity. You basically sign your Will in the presence of a notary, and your witnesses must do the same. Also, you and your witnesses will sign notarized affidavits that establish who you are and confirm that each of you knew you were signing a will. Those affidavits are kept as separate documents.
Join us for a free seminar today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
#estateplanning, #schomerlawgroup, #losangelesprobatelawyers
Latest posts by Scott Schomer, Estate Planning Attorney (see all)
- SALT Deduction Limit…Can You Get Around It? - February 4, 2019
- What Can a Los Angeles Probate Attorney Do For You? - February 3, 2019
- 5 Great Tips for Long Beach Probate Court Administration - February 1, 2019