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 litigation attorneys 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. First, it can be challenged if the will was not signed properly. When there is a question about the testamentary capacity of the testator there may be a challenge to the will. The same is true when there is a suspicion of undue influence in executing the will. Finally, 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. If you have questions about any of these specific issues, our Los Angeles probate litigation attorneys can provide those answers.
Obtain a geriatric assessment before executing the will
One way to head off challenges to the capacity of the testator of a will, especially when the person is elderly, is to obtain a clinical geriatric assessment. This is also a good idea when the estate is significant or contains complicated assets. The assessment should include specific instructions regarding the legal standard for capacity in that state.
In California, a will is not valid if it was executed while the testator lacked the required testamentary capacity. Under California law, an incapacitated person is defined as follows:
[a] person is of unsound mind or lacks the capacity to make a decision or do a certain act when there is a deficit in at least one of the following mental functions and the deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the act or decision in question.
The statute goes on to list several mental functions relating to alertness and attention, information processing, thought processes, and the ability to modulate mood and affect. Capacity can be a complicated concept in some states. That’s why it is important to discuss your situation with your estate planning attorney.
Choose witnesses who are acquainted with the testator
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.
With regard to the witness requirement for a self-proving will, it is best to choose witnesses who are acquainted with the testator. The witnesses need to be able to successfully lay the factual foundation for their opinion that the testator was of sound mind at the time the will was signed and executed.
Assets required to go through Los Angeles County Probate Court
The following types of assets are ordinarily required to go through the probate process in Los Angeles upon death: assets that were held in only the deceased’s name, half of each asset that was registered with his or her spouse as community property, that portion of any asset that belonged to the deceased that he or she held as a registered tenant in common with other people, and any assets, including such things as jewelry, art, furniture or the like, that are not registered. If the total value of the deceased’s assets at the time of death is less than $100,000, probate is not necessary under California law.
Assets typically excluded from Probate
Again, not all property is subject to probate in Los Angeles. The following assets can be transferred while avoiding probate altogether: assets that are held in joint tenancy, assets that are held in a living trust, assets where a beneficiary is named, such as IRA benefits or life insurance policies, assets held in a bank or credit union where the deceased was named as a trustee for another person, assets that were registered in the person’s name that are “payable on death” or “transfer on death” to another person, and assets registered with a married couple as community property with the right of survivorship. All assets that go to a surviving spouse, including any assets the person who died owned separately in his or her name but were left in the will or by intestate succession to the surviving spouse.
Download our FREE estate planning worksheet 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.
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