An individual who is interested in a will or whose relative or friend left an estate that is in probate first wants to understand what a will accomplishes and what probate is. An individual prepares a will in order to direct how their assets, their wealth, is to be distributed when they pass away. A will is a legal document of great importance, and the law of California has specific requirements that must be met if a will is to be valid and achieve its purpose.
Probate is a legal process that begins after an individual’s death to ensure that their assets are distributed as specified in their will. Or, if there is no will, the law specifies how a person’s assets should be distributed. In addition, the probate process ensures that any taxes owed are paid and the deceased person’s legitimate debts are paid.
An individual appointed by the probate court who is called an “executor” manages the probate process and makes sure that everything that needs to be done is accomplished. Probate may involve the following:
- Establishing the legal validity of a will if the deceased person left a will
- Identifying all of the deceased person’s assets
- Identifying and paying any taxes and/or debts owed by the deceased at the time of their passing
- Maintaining the assets during probate
- Determining how to distribute assets according to intestacy laws if there is no valid will.
A legal consultation in California with a California lawyer would help a person understand wills and probate and prepare for legal processes.
There are some legal requirements for a will to be valid. There are also requirements for contesting a will. As noted above, wills determine who inherits a person’s assets when they pass away. Individuals who may have expected to be named as an heir may be disappointed if they learn that they are not mentioned in the will and will not inherit anything. Or a person may learn that they will be inheriting less than what they expected.
This may lead to conflicts, and if conflicts lead to a legal proceeding, they are referred to as will contests. They usually involve the people who are named in the will as beneficiaries who stand to inherit a part of the deceased person’s assets. Contesting a will means an individual challenges the validity of the will or one or more of its provisions.
An individual must have standing to contest a will. Any interested party, for example, a child of the deceased person, may contest a will in California. They would do this by filing a motion in probate court immediately after the death of the person who made it to object to the executor’s petition to probate the will.
If probate has occurred already, a person may contest a will within 120 days of the probate hearing date. A petition must state the grounds for their objection to the will as it is written.
A will may contain an anti-contest clause. This clause provides that anyone who attempts to contest the terms of the will will automatically forfeit any claim they may have to an inheritance under the will. In California, enforcement of a no-contest clause in a will is limited to only 3 situations by the California Probate Code as follows:
- A no-contest clause is enforced against a person who contests a will without probable cause.
- A no-contest clause may be enforced against a person who challenges a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer. A no-contest clause may only be enforced if the clause expressly provides for this application.
- The filing of a creditor’s claim or prosecution of an action based on such a claim. Again, a no-contest clause can only be enforced in this instance if the no-contest clause expressly provides for this application.
If there is a no-contest clause in a will, a person who thinks they may want to contest it wants to get the opinion of a lawyer as to whether it is the right move to make in light of the no-contest clause.
What Documentation and Questions Should I Prepare Before Meeting With My Wills, Trusts, and Estates Lawyer?
It is important to gather relevant documents and prepare a list of questions to ask before a meeting with an attorney. Preparing for a contested will or probate would include gathering up relevant documents and other information, such as the following:
- A copy of the will itself
- A copy of any communication that a person had regarding the will and the person who made it
- Other documents that would support the contest claim
- The names and contact information for anyone who may be a witness to the making of the will and other relevant events
- Information the person has about the status of probate of the will
- The identity of the court in which probate has taken place if it has
- The identify of the executor of the estate
- Any other documents that the attorney may request.
An individual should write down the questions they have about wills, probate, and contesting a will. This will allow the attorney to address any concerns an individual may have. Some relevant questions can include:
- Do I have standing to contest the will?
- What are the consequences of contesting the will?
- How long does it take to contest a will?
- How likely is the contest of a will to be successful given the facts of the individual’s situation?
- How much does it cost to contest a will?
- What experience does the attorney have with probate and will contests?
- Any other questions an individual may have.
It is important to note that there is no frivolous question regarding a case. It is the attorney’s job to explain the circumstances and ensure their client understands the issues involved.
What Makes a Contested Will or Probate Case Strong in California? What Makes It Weak?
An attorney who is knowledgeable about wills, the probate process, and how to contest wills would be of great help in reviewing a case before it is filed to ensure the individual has standing to challenge a will and meets the proper legal standards for success in court.
The process begins when an attorney files an action in the probate court. It is essential to file the action as soon as a dispute arises. In California, as in every state, there are statutes of limitations, or time limits, that prohibit certain lawsuits once a time period has elapsed.
It is difficult to successfully contest the validity of a will. That is why the assistance of an attorney is so invaluable. The right attorney knows how to present an effective case to the court, and what evidence is required to prove their client’s case.
A California court presumes that a will is valid, and succeeding with a challenge is not easy. The burden of proof is high. That means it is difficult to succeed.
It is especially difficult to contest a will after the probate process has ended. It may, however, be possible under certain circumstances, e.g., a will was forged or fraudulent will or the testator, the person who made the will, lacked the mental capacity to make a valid will.
Other grounds for contesting a will after probate may include:
- The testator was subject to coercion.
- The testator was subject to duress.
- Some form of deception or fraudulent misrepresentation led the deceased to make certain provisions in the will that did not reflect their true wishes and intent. The challenge must be supported by proof of fraud.
- The testator lacked the mental capacity to make their will.
- The will was not executed as required by law.
There are strict requirements for the legal execution of a will. A will must be in written form, signed by the testator, and attested to and signed by two competent witnesses. If the execution of a will did not fully conform to these requirements, it could be ruled invalid.
Once a will contest petition is filed, the probate court schedules a hearing. At the hearing, the parties present the evidence they have to prove their case and make their arguments to the judge.
If the court voids a will based on a petitioner’s argument, they then ask that any previous drafts and/or copies of the testator’s valid will be presented to the court. If any of these exist, the court will likely follow the instructions provided in another version of the will.
If no other versions of the will exist, the court strikes the invalidated will and treats the estate as if the individual passed away without leaving a will. In these cases, the decedent’s property will be distributed according to the laws of intestacy of California.
It is best to avoid a will contest by having a qualified California estate lawyer draft a person’s will. An individual can also modify a will as often as they wish, and again, it is best to have this done by a qualified attorney in California.
In California, What Are Some Dos and Don’ts for Contested Will or Probate Cases?
Some “dos” for contested wills or probate cases include:
- Hire an Attorney: Will contests can be complex and technical. They involve presenting qualified evidence in court and are not easily handled by an individual who does not have the necessary legal knowledge. A person wants to analyze their situation carefully and have a solid case before going to court.
- Gather Evidence: as much evidence as possible in support of the case. Will contests can be difficult to prove so the best evidence is absolutely essential.
Some “don’ts” for contested wills or probate cases include:
- Do Not Lie: It is never advisable in a legal proceeding to lie about any aspect of the will contest. A person may feel that the testator’s wishes were unfair, but it is important that they not try to gain an advantage by making false statements and/or accusations in an attempt to increase their inheritance.
- Do Not Contest a Will for Frivolous Reasons: These issues can divide families and cause great conflict. In addition, a person who does not have a solid case could waste a lot of money for no gain. A person should undertake a will contest only for the best legal reasons.
When Do I Need a California Lawyer for Wills, Trusts, and Estates Issues?
If you question how a probate is being handled or have the will of a relative or loved one who has recently passed away and do not know where to begin, you want to contact a California probate lawyer. A probate lawyer will know exactly what to do and how the probate process should proceed. If an executor is already at work but does not seem to be handling things appropriately, your probate attorney should be able to help get things back on the right track.
If you think you have good grounds to contest the will of a relative or friend, you want to talk to a California estate lawyer. Your lawyer can review the will at issue and get any relevant background information from you. They can tell you whether you really have grounds to contest a will and how to go about doing it.
