• JC Serrano

Drafting and Challenging Wills: How An Estate Attorney Can Help

Updated: Jun 5

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.

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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

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  • 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:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

Fiduciary Irresponsibility

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 w