Drafting and Challenging Wills: How An Estate Attorney Can Help
Updated: Apr 26
Find An Estate Lawyer in California for Inheritance Claims
Wills and trusts and the probate process, in general, can be the most effective and least cumbersome way to ensure that a decedent's properties are transferred to families, associates, and institutions. What happens, though, when bad actors are involved? Or whether the most recent Will or Trust fails due to the decedent's inability to execute the documents due to mental or physical incapacity? People can be persuaded to act against their will by deception, bribery, and undue control. Caregivers, neighbors, and "mates" may build an atmosphere where family members are either not welcome or physically excluded. These bad actors than "assist" the individuals in drafting a new Will or Trust that excludes the family and helps only the wrongdoer.
Many times, people would have well-drafted, carefully considered estate documents prepared at a time when they are capable of putting together an estate plan and comprehending the consequences of their choices. However, as strangers intrude into the lives of the sick and elderly, new estate documents often appear after the individual has passed away. Unfortunately, as the victim of a bad person who has fraudulently taken control of your family's assets, you must bear the burden of proof.
For surviving family members and loved ones, the period following the death of a loved one is always a confusing time. The legalities that must be resolved can often overwhelm the mourning phase. If you have cause to doubt the authenticity of the decedent's Last Will and Testament, for example, you must act on your doubts quickly or forever waive your right to do so. The time limit for contesting a Will in California is determined by when the Last Will and Testament document is sent to the Probate Court in the county where the decedent died for probate administration.
What Is Probate and How Does It Work?
When anyone dies, the estate of the deceased will be expected to go through probate. The size of the estate and how the decedent held title to assets determine if the estate would go through probate. Certain estate planning strategies, such as a revocable living trust, will help you escape the need for probate. If a Will is discovered, it is filed with the proper probate court, along with a petition to open probate and a certified copy of the decedent's death record. Probate serves a number of purposes, including authorizing creditors to file lawsuits against the estate and ultimately passing estate properties to beneficiaries and/or heirs. However, the probate court's first duty is to authenticate the decedent's Last Will and Testament. This is also the moment when doubts about the will's validity will arise.
Do You Need an Estate Lawyer for Simple Wills?
The majority of citizens do not need the assistance of an Estate Planning Lawyer to draft a simple will. Will laws are straightforward, with only a few legal requirements:
Wills must be typewritten from beginning to end. Handwritten wills are legal in some jurisdictions, but they can only be used if you don't have time to write a formal will.
At least two witnesses must sign the paper.
To make a will, you must be 18 years old. In certain cases, such as if you are married or in the service, some states encourage younger people to make wills.
To make a will, you must be of sound mind. This is a standard that most people can easily satisfy.
A will document can (and should) be written in plain English so that the context is clear to you and everyone else who reads it. With the aid of good self-help tools, you will create your own will. Of course, if you have a difficult situation or legal problems, you can seek legal advice.
What A Simple Will Can Do
A simple will is an essential part of almost every estate plan. A can be used to:
Make a decision on who will inherit your land.
appoint an executor
appoint guardians for your minor children and their possessions
A will can also be used to cancel debts, appoint new guardians for your pets, and determine how your debts and taxes will be charged. Even if you use a living trust to transfer much of your assets and stop probate, it's always a good idea to write a simple will to appoint guardians for your minor children and to take care of any assets that don't end up in the trust.
If you don't have a will or another arrangement in place, such as a living trust, your property will be divided according to your state's "intestacy" laws if you die without one. Intestacy rules, in general, grant your property to your closest relatives – or at least to those that the state considers being your closest relatives – typically your spouse, children, parents, or siblings. Making a simple will is the best way to stop letting the state determine who gets your land.
Is it true that everybody needs a will? There is a small group of people who do not need a will. For instance, you may not require a will if you:
don't have any little children
don't have a lot of lands
It makes no difference to you who inherits your property based on your state's intestacy rules.
If you can answer yes to all of these questions, you are one of the few people who do not need a simple will.
How to Make Your Own Will
You can write your own will with the aid of good self-help books, apps, or online programs. A good self-help book will illustrate how it will work, how to write one, how to make it legal, and when to seek legal advice. Look for a will-writing program that uses plain English in both the instructions and the text. You must fully comprehend what you are doing and what the will states. In a will, legalese is unnecessary.
If your intentions are straightforward–for example, if you want all of your assets to go to your spouse and you don't have any minor children–you do not need to spend much time preparing your will. However, if your situation is more difficult than other people's, you might need to collect some facts before making your will. Here's a rundown of what you might require:
Your legal name in its entirety. This should be your legal name for purposes such as work, voting, and banking
The full legal name of your partner
The full legal names and birthdates of your children
Personal guardians' names Names of those who will look after your young children if you are unable to
Caregivers for pets The names and details of your pets, as well as the people who will look after them if you are unable to
A rough inventory of what you own (you won't need this if you want to leave it to one or a few people)
Names of those who would profit. Names of those you want to leave your property to
Alternate names for the beneficiaries. If your first-choice beneficiaries die before you, the names of those to whom you would leave your land
Names of the property guardians. Suppose you are unable to handle your young children's belongings, names of people who can
Names of the trustee or custodian. Names of people you want to run the property you leave to your young heirs
Debts that must be forgiven. If you want to forgive debts owed to you, you'll need to know the name of the person who owes you money, when the debt was incurred, and how much you owe
Accounts that are used to pay loans and taxes. If you want any loans or taxes to be charged from specific bank accounts, you'll need the account numbers
Names of the executors. Names of people who will be responsible for closing your estate, including alternates
If you use a will form, such as the one you can find online or in a book, you'll have to fill in your personal details and decide which clauses to include. If you're going to use a fill-in-the-blank method, make sure you have a strong self-help tool that outlines what you need to know. You won't have to do too much work if you use software or an online application because the program would put the paper together for you. You can, however, double-check that you understand and comply with your final text.
You and two witnesses will sign your will to make it legal. Although notarization is not needed, you can attach a "self-proving affidavit" that must be notarized in many states. The affidavit aids your executor in obtaining probate for your will after you die, but it is not needed. This affidavit will be given to you by a good will-writing tool, along with instructions on how to use it.
There may be different concerns and considerations to address as you step forward with inheritance planning, some of which may include:
The nature of the inherited asset(s) or property – The best inheritance planning options for liquid assets vary significantly from those for land, shares, stocks, and other forms of assets. Our prescreened Estate Attorneys in the Los Angeles area is experienced in analyzing different forms of inherited properties and developing the best future solutions for them.
The beneficiary's financial condition – The current financial situation of a beneficiary is crucial to consider when arranging an inheritance since it can influence whether the inheritance is spent or saved (or something that beneficiaries may want to avoid). When beneficiaries have a lot of debt, for example, inheritance planning will be based on paying down debt and putting money aside for retirement. When beneficiaries are financially secure, on the other hand, inheritance planning can be more adequately based on a range of investments to further boost beneficiaries' financial situation.
If the beneficiary already has an estate plan in place – If beneficiaries do not already have estate plans in place, the prospect of a large inheritance in the future will make it necessary for them to begin their own estate planning. Inheritance planning can also include revising the terms of people's wills (and other estate planning documents) to account for the inherited property and/or properties when beneficiaries do have estate plans in place.
The bottom line is that there is a lot to think about when it comes to inheritance planning, and getting an Estate Attorney by your side will help you make the right decisions about your potential inheritance.
If a trustee acts carelessly or against the wishes of the decedent, one or more beneficiaries will file a lawsuit against the trustee. A breach of fiduciary duty claim seeks to recoup what a beneficiary is entitled to under a will or trust. The trustee can be suspended as trustee in addition to paying fines and/or compensation.
When Can You Contest a Will?
One of the purposes of the probate process is to authenticate the decedent's ostensibly executed will prior to death. Since the probate court must authenticate the will, you cannot appeal it until it is presented to the court for probate. In essence, a Will is only a text before it is declared true by the court. As a result, you won't be able to contest the validity of a Will until the executor of the estate files it with the probate court. However, you must be prepared to appeal the will before the court allows it to be probated. The court will schedule a hearing to determine a will's validity when it is filed for probate. If you want to appeal the will, you may object to its admission before the hearing.
If you miss your initial opportunity to appeal the Will, California law allows you to do so again. Suppose the will was already ruled valid at the hearing and thus admitted to probate. In that case, you have 120 days from the date of admission to file a petition contesting the will and essentially asking the court to revoke its initial order finding the will valid.
Additional Points to Consider
If you're thinking of contesting a will, there are a few things to keep in mind to make sure you're in the best possible spot. Since just nobody can submit a Will contest, the first question of any Will contest is whether or not you are eligible to contest the will. To challenge the will, you must have "credit" in the eyes of the law. This means you must have the legal authority to file the lawsuit. In California, only an "interested individual" has standing in a Will contest. Someone who stands to gain or lose something from the litigation is referred to as an "interested party." It generally applies to an estate's legal successor, a beneficiary of the new or previous will, or an estate creditor.
You must also state a legitimate justification for contesting the will's validity. The fact that you were left out of the will or received less of an inheritance than you expected is not legal grounds for contesting a Will. The following are examples of grounds for declaring a Will invalid in California:
Who has the right to challenge a will?
You must be an "interested party," which means you're either included in the will or would inherit from the decedent under the law if he or she died without one. You don't have to be a family member to be involved. For example, if you know that a previous will gave you more, you can challenge a friend's or neighbor's will that reduces or eliminates your inheritance.
Surviving spouses (and, to a lesser degree, children) are protected from disinheritance by state laws. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and, by arrangement between spouses, Alaska—community-property states—allow you to do whatever you want with your half share of the community property and your separate property in your will.
Property obtained during the marriage is not required to be shared by both partners in all other states. However, most of those states grant a surviving husband or wife the right to claim one-third to one-half of the deceased spouse's assets, regardless of what the deceased spouse's Will says. The sum a widow or widower may demand in some states is determined by how long the couple was together.
There are constitutional requirements, and the surviving spouse is not required to challenge the will. However, they only take effect if the survivor files a lawsuit in court for his or her share. If he or she does not object to getting less, the will be carried out exactly as written.
What Are the Grounds to Challenge A Will
There are few exceptions to the rule that children do not have the right to inherit from their parents. Many jurisdictions, for example, protect children from being disinherited by mistake. Those laws typically apply if a child is born after his or her mother or father has written a will that leaves property to other children and has not updated the will to include the new child.
You cannot challenge a will simply because any or all of its provisions offend you. You must instead show that it is void for one or more legally recognized purposes. It's a daunting challenge because the law assumes that a will is true and accurately represents the desires of whoever wrote it.
You may attempt to invalidate a will by claiming incompetence. It would make no difference if your Aunt Augusta died of Alzheimer's disease last month in such cases. You must show that she was mentally ill when she made her Will 15 years ago. You'll need to present old medical records or witnesses that will attest to the fact that your aunt had no idea what she was doing when she made it.
You may also contest a will if you believe the person who wrote it was influenced by another person, such as a home health aide. You'll need to prove that the aide had the opportunity and was in a position to convince your loved one to change his or her mind. You may also claim that a will is void because the person revoked it, executed it incorrectly, or was a victim of fraud or forgery.
State of Mind
A true will must have been written by someone who was "of sound mind" at the time. "Testamentary capacity" is the legal term for the mental skill required to make a true will. This isn't a particularly stringent criterion. Incapacity is not established by forgetfulness or the failure to remember friends.
In most cases, a court dealing with a question of mental ability asks that the person who made the will:
was aware of the purpose of a will and that he or she was preparing one
knew who their nearest relatives were
he or she was aware of what he or she possessed
was able to determine how the property should be distributed
The testimony of those who saw the will-maker at or very close to the time the will was signed (including witnesses who also signed the will, a doctor who saw the will-maker the week before, the lawyer in whose office the will was signed) is usually very relevant in a case over testamentary capacity. In one case involving a will-power, maker's the court decided that the testimony of an Estate Attorney who had never met the will-maker but had seen him the day the will was signed was more valid than that of a doctor who had developed an opinion solely based on medical records. 2011) (In re Bosley, Pa. Super. Ct.)
A will can also be ruled void if anyone can show that it was obtained by "undue interference" in court. This typically involves an evildoer in a position of confidence, such as a caregiver or adult child, manipulating a vulnerable individual into leaving all or most of his property to the manipulator rather than to the people who should have received it. In other words, the will serves the wrongdoer's interests rather than the will-maker's.
Forgery or Fraud
A will contest can, of course, be based on forgery or fraud. Someone may argue, for example, that a will-maker was duped into signing a contract or that a signature was forged. These arguments are often made in conjunction with allegations of excessive control and lack of testamentary ability.
Wills that have been improperly executed
A will must be dated and signed in the presence of two adult witnesses who must also sign the will. In most states, the witnesses cannot be those who are mentioned in the will to inherit the land.
Handwritten, unwitnessed wills are admitted to probate in about half of the states. These documents are known as "holographic wills," and they must be completely written and signed in the maker's handwriting. (In some states, they must also be dated.) Holographic wills are more easily challenged than traditional typewritten wills since there are no witnesses. The probate court must be convinced that the paper is in the deceased person's handwriting and that it was meant to be used as a will.
How to Stay Away from a Will Contest
There are a few things you can do to stop a will contest, such as:
Don't Wait — It's a common mistake for people to put off writing a will until their physical or mental health has deteriorated. An individual who lacks testamentary ability is unable to make a will, and this is one of the most common reasons for will contests.
Use a No Contest Clause — The California Probate Code requires a no-contest clause, also known as an "in terrorem clause," to be used in a will. A no-contest provision specifies that if a beneficiary contests the will, he or she will be left with nothing. If a court finds that a contestant filed a contest without probable cause, the contesting party may be barred from receiving any distribution under the will.
Create a Trust-based Estate Plan — Since a will is a public document, it is susceptible to disagreements that may result in a will battle. You transfer ownership of your property to the trust when you create a revocable living trust, and the trust avoids the probate process. Trusts, on the other hand, must go through an administration process, during which problems can arise.
Avoid Undue Influence — Working with your solicitor privately and not including the beneficiaries in your will discussions is the safest way to protect your interests. To prevent misunderstandings and minimize the chance of disputes, you can discuss your decisions with your family once your will is in place.
When Do You See an Estate Attorney?
While many people can make a simple will without the help of an Estate Lawyer, certain situations necessitate legal assistance:
Gifts. Consult an Estate Lawyer if you want to impose restrictions on your gifts. Any limitation that restricts the beneficiary's ownership of a gift is referred to as a condition. For example, suppose you want to give your house to your wife, but you want it to go to your sister after she dies. Alternatively, you may want to leave your daughter a large cash gift, but only if she remains sober. These items may be plausible, but they may be legally complicated, so you should seek legal advice.
Capacity. Consult an Estate Attorney if you are unsure if you are "of sound mind." You are obviously of sound mind if you know what you own and what it means to give it up in your will. However, if you have any questions about this, or if someone else does, seek legal advice to ensure that you know what you're doing.
Challenges and Disputes. Consult an Estate Attorney if you believe you will be challenged or challenged. A competent Estate Planning Attorney will add extra protection to your will to ensure that no one attempts to undo your wishes after you pass away.
Taxes. Consult an Estate Attorney if your property is worth millions of dollars and you want to stop paying estate tax. Since you must be wealthy to pay estate tax, this is not a concern for the vast majority of citizens.
If you ever decide to seek legal advice, come armed with detailed questions, so you don't end up paying an Estate Lawyer to educate you about estate planning. Take the time to find a knowledgeable solicitor who can listen to your concerns and collaborate with you to create your estate plan.
Estate that isn't subject to probate is causing a dispute.
Wills do not pass over certain important properties, such as 401(k)s and other retirement plans, life insurance benefits, property held in living trusts, and jointly held bank accounts. In certain exceptions, they go to designated heirs, trustees, or joint owners.
Survivor spouses, for example, are protected by federal and state laws from losing their retirement accounts to other heirs. If the surviving spouse signed a waiver consenting to the option of a particular beneficiary, a widow or widower has the right to all of the money in a deceased spouse's 401(k), 403(b), or Keogh account, regardless of who is appointed as beneficiary. Former spouses are therefore covered under federal statute. If a man names his wife as the beneficiary of his 401(k), pension plan, or employer-sponsored life insurance policy, and the couple divorces, the 401(k), pension plan, or employer-sponsored life-insurance policy becomes void. His ex-wife is also entitled to inherit those properties if he fails to adjust his beneficiary.
IRAs are governed by state rules. A married person may appoint someone as a beneficiary of his or her traditional or Roth IRA, but depending on state law, the surviving spouse may be entitled to a portion of the money. In several states, if you appoint your spouse as the beneficiary of your IRA or Roth and then divorce without changing your beneficiary type, your ex will not receive the income. It will be distributed to the alternative beneficiary you designated.
You'll need to file a claim to overturn a beneficiary status on a savings plan or life insurance policy, as well as the terms of a living trust. However, such situations are uncommon, most likely because they are difficult to win.
You have a greater chance of obtaining assets that are owned jointly.
Assume you and your brother share your mother's $100,000 bank account. Mom splits her $50,000 probate estate equally between you and your sister in her will. If Sis refuses to divide the bank account, you should employ an Estate Lawyer to write a letter to the bank claiming that the account should be included in your mother's probate assets. Many banks will freeze your sister's access to the account out of fear of liability, putting you in a strong position to negotiate a cut.
Is It Going to Be Difficult?
A Will contest is a form of adversary pleading that is sometimes costly and detrimental to family harmony but is often required to carry out the true wishes of a now-deceased relative. Despite the No Contest provisions mentioned elsewhere on this website, such contests are far from rare, and the main challenge for anyone considering one is to get good legal advice quickly and, if necessary, file quickly, as the longer one waits, the more complicated the contest becomes.
If you're an executor or appointed executor facing such an obstacle, you'll need to act quickly if you want to avoid a contest. The truth is that the longer you wait to apply for probate, the more likely you are to end up in court.
To invalidate a Will carries a heavy burden, and it is not a duty to be taken lightly. On the other hand, the courts are dedicated to deciding if the testator's desires are actually being met by the will submitted for probate, and the task, though substantial, is far from insurmountable.
Before making that move, seek good, calm, and considered guidance from an Estate Lawyer and other family members.
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