Estate Planning in California: What to Expect When Contesting a Will
A well-prepared and thought out will is a hard thing to contest. When you work with an elder law attorney, you’re more likely to have a solid plan that has no challengers.
At the same time, people can be unpredictable, especially when it comes to money, property, and other assets. There are valid reasons to contest a well, as well. From divorced and widowed parents remarrying and forgetting to update their wills to children who wish to battle out decisions in probate court, it’s relatively common for someone to contest a will.
If you are owed an inheritance when a loved one dies, an elder law attorney in Los Angeles can help. California laws are strict, but help is only a phone call away.
Grounds to Contest a Will
Just because your side doesn’t like the way a will was written doesn’t mean you have a strong enough case to win in court. There typically has to be a legal reason that the will can be invalidated.
An attorney familiar with Los Angeles elder law can help ensure you have the right makings for a strong case. While there are a variety of nuances that can impact your situation, there are the four main reasons someone can use to contest a will. You don’t need to hit all four. Often, a single met provision can invalidate the entire will.
1. The Will Doesn’t Meet State Laws
Every state has specific laws dictating how a will and other estate documents must be organized and signed.
For example, the person who created and is leaving the will must be the person to sign it. In some states, the signature must happen in front of several witnesses. Other states have different requirements for wills that are typed or written by hand.
It’s crucial that you’re confident that your will is signed according to California law. Failing to do so could result in the entire will being thrown out when contested. On the other hand, if you feel that a loved one didn’t sign the will according to state law, meet with an elder law attorney to discuss options.
2. The Signer Lacked Testamentary Capacity to Sign the Will
The term “testamentary capacity” just means that the person creating the will understands the legal impact of signing the will. They need to understand the gravity of their assets and who stands to inherit them.
State laws vary in regard to the legal threshold required to meet the minimum testamentary capacity. Some states allow those with signs of dementia, memory loss, or other cognitive issues to sign away. Unless there is a doctor’s recommendation or judge’s order showing otherwise, contesting a will based on testamentary capacity is hard to prove.
3. Unduly Influence in Signing the Will
If someone exerts extreme pressure to get someone to sign a will, there may be room to contest. It’s crucial to understand that just nagging, threats, and verbal abuse aren’t enough to meet this threshold. The abuse required to count as unduly influence must put the signer in such duress that they feel that they’ve lost their free will.
Proving unduly influence is difficult to prove. Your Los Angeles elder law attorney will need to work with the signing party’s attorney to investigate the provisions of the will, how it was paid for, and more.
4. Fraud
If someone is tricked into signing a will, it’s not valid. Someone might be given a will, but believe it is a different document. While most people would review a document before signing, this kind of fraud is more common than you’d think.
Your Los Angeles elder law attorney can help determine if your loved one’s will was completed via fraud. Proving this can be challenging, but it’s a worthwhile effort if the will wasn’t signed correctly.
What If I Want to Contest a Loved One’s Will?
If you have reason to believe that your loved one’s will is worthy of being contested, you’ll need an attorney to formally file the paperwork. There are ways to submit your claim in probate court, but California law is extremely complicated. There may be a limited amount of time to contest the will, as well
Here are some things you should expect when contesting a will:
1. There are high costs
While working with a lawyer is the best way to ensure your case has a chance, there are costs. Fees can reach up to a third of what you receive from the will. Most law firms do not work on contingency out of fear they won’t get paid. Make sure to get referrals and check references before committing to a law team.
2. Get ready for quick decisions
Your elder law attorney will help you develop a strategy for your case. You may be advised to file right away or wait until a more opportune time. There will be other big decisions that may need to be made without much time to think.
Since contesting a will is a fight against the clock, there isn’t always time to sit on options. Have a clear goal in mind so you can make decisive choices, even when put on the spot.
3. Prepare to settle
Lawyers on both sides will continuously be evaluating the strength of the case. At one point, one of the attorneys will make a settlement offer. With the emotional rollercoaster of this lawsuit, it’s common for parties to be tired of the fight. You might also see weakness in your case that could result in you getting nothing.
Prevent Your Will from Being Contested
You can imagine how difficult going through contesting a will is. On your end, you may decide to do everything you can to keep your loved ones from going through this experience when you pass.
There are a few steps that you can take to limit the possibility of someone contesting your will.
- Follow your state’s laws. Make sure you organize and sign your will according to your state’s laws. Your elder law attorney is a vital part of making this happen.
- Add a no-contest clause. A no-contest clause doesn’t mean your will cannot be contested. It does, however, mean that anyone who challenges the will and loses will lose everything.
- Get your will notarized. Most wills are not required by law to be notarized. Doing so helps make it harder for someone to suggest your will was signed under duress or via fraud.
Call a Los Angeles Elder Law Attorney Today
Whether you’re preparing your will or believe there was foul play regarding a loved one’s will, you need the help of an experienced elder law attorney. There’s no excuse to take on the future of your loved one’s assets alone. There is too much at stake.
Call us today to speak to one of our elder law specialists!
