Coping with the emotional aftermath of a loved one’s passing is always challenging. However, navigating the practical and legal consequences can be equally daunting. Contesting the will of a recently deceased family member is a weighty decision that many find difficult to make. To assist you in making an informed choice, the Los Angeles attorneys at Schomer Estate & Wealth Advisors provide insight into key considerations to contemplate before opting to contest a California Will.
Fundamentals of Probate
Upon the death of an individual, the law mandates a thorough accounting of the decedent’s estate assets, ensuring their rightful and legal transfer to the intended beneficiaries and/or heirs of the estate. During this process, formally referred to as “probate,” outstanding debts, including gift and estate taxes, must be settled before assets leave the estate. Authentication of the decedent’s Last Will and Testament, if one was submitted, is among the initial probate steps and marks the opportune moment for contesting the Will, should you decide to do so.
Understanding A California Will Contest – Assessing Worthiness and Costs
Given the uniqueness of each estate, consulting an experienced probate attorney is crucial if you are contemplating a California Will contest. While specifics may vary, it is beneficial to understand some of the common factors typically taken into account when deciding if contesting a Will is the right choice.
A primary consideration is whether you possess legal grounds that could be used to successfully invalidate a California Will. Being unhappy with your inheritance (or lack thereof) or with other terms of the Will is not a legal reason to contest a Will. In California, grounds on which a Will might be declared invalid include:
- Lack of testamentary intent or capacity. This requires you to prove that the decedent did not have the required mental state when the Will was made.
- Undue influence. Refers to an improper influence, usually from another person, at the time the Will was drafted and that affected the terms/drafting of the Will.
- Fraud. You must prove that the Will was made as a result of fraud on the decedent or that fraud was used to create the Will.
- Duress. Proving that the decedent was unlawfully confined or detained when making the will.
- Mistake. Claiming a mistake when the Will was made caused it to be invalid, or that a mistake is preventing you from receiving something from the estate to which you are legally entitled.
- Revocation. Proving that the Will was voided or cancelled out by a later Will or similar document.
Considering the substantial financial and emotional investment in contesting a Will, consulting with an attorney to determine if you stand a reasonable chance of proving one of these grounds is crucial before proceeding.
Along with making sure that you have solid legal grounds to use in a California Will contest, you need to consider the impact of a “no contest clause” or “in terrorem” clause in the Will if relevant. A no contest clause works by offering you (or anyone who might contest the Will) a guaranteed inheritance that you will lose if you launch an unsuccessful Will contest. For example, imagine that the terms of the Will gift you $50,000 but you would inherit $250,000 under California intestate succession laws. If the Will has a no contest clause it means that you can accept the $50,000 and not challenge the validity of the Will or forfeit the $50,000 if you embark on a Will contest. If you are not successful, you walk away with nothing; however, if you are successful and the Will is probated using California’s intestate succession laws, you will inherit $250,000. Whether a no contest clause can be enforced in a Will (or trust) is determined by state law. Under California law, a no contest clause will only be enforced if a Will contest is initiated without probable cause. In practical terms, this means that a court will only enforce the terms of a no contest clause in a California Last Will and Testament ifthe court believes that the Will contest is frivolous and without legal merit. If the court is convinced that you had a reasonable and valid belief that the Will was invalid, a no contest clause will not be enforced.
Do Need Assistance Deciding Whether to Contest a California Will?
For more information, please join us for an upcoming FREE seminar. If you need assistance evaluating the merits of pursuing a California Will contest, contact the experienced Los Angeles probate attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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