Regardless of the size of the estate, a will is an essential part of any estate plan. Many clients who are just getting started with estate planning are aware that a will can be used to transfer property to designated heirs, but it can also be used for other purposes.

A will may determine which family members or friends may assume legal guardianship of minor children in families with minor children. Without this information, the state will appoint a guardian for your children, putting their upbringing in the hands of people you don't know.

Find a California Estate Lawyer for Will Creation, Claims, and Disputes

If you die without a valid will, your assets will pass to your heir's intestate. Intestate succession divides your estate equally among your living family members according to state statute, which may or may not represent your goals or wishes, which may result in unanticipated tax consequences. By making a will, you can keep track of which family members obtain property and in what proportion.

What Your Will is To Your Family

A will is an important part of the roadmap that your family will require after you die. It has the ability to appoint the executor and beneficiaries of your estates and trusts. Your children's guardian can also be included in your will. Many people find this to be a particularly important step because they have a specific family member in mind to be the guardian.

Having the help of an estate planning attorney during the will-writing process is important. Your estate will no longer be managed according to your wishes if a will is found to be null due to errors. It's possible that your savings, land, and assets won't be allocated to the people you want.

Giving Your Case Detailed Feedback

We will meet with you to discuss your objectives. Your Estate Planning attorney will want to make sure that your estate is managed in the most reliable, proper, and cost-effective manner possible, in accordance with your wishes. To escape probate, you can build trust instead of a simple will after meeting with an Estate Planning attorney. It's important to note that if you only have a will or no will and your assets equal more than $150,000, a probate will be required. A knowledgeable Estate Planning attorney can advise you on how to divide assets among beneficiaries and whether you should use a will or a trust. Your choice is yours alone, but your Estate Planning Lawyer will provide support if you need it and ask for it.

Here's a short rundown of what you'll need to make a will in California:

Choose which assets to include in your will.
Make a decision on who will inherit your land.
To manage your assets, appoint an executor.
You should appoint a guardian for your children.
Choose someone to look after the property of the kids.
Make your will.
In front of witnesses, sign your will.
Keep your will in a safe place.

Why Should I Make a Will in California?

A last will and testament (commonly referred to as a will) will aid in the protection of your family and assets. A can be used for a variety of purposes, including:

entrust your land to others (or organizations)
appoint a trustworthy person to look after any property left to minor children
appoint a personal guardian to look after your minor children
Choose an executor who will be in charge of carrying out the terms of your will.

What Happens if I Pass Away Without Leaving a Will?

If you die without a will, state "intestate succession" laws will determine how your assets are distributed. The intestacy law in California distributes your assets to your closest relatives, starting with your spouse and children. In the absence of a spouse or children, your property will be passed on to your grandchildren or parents. Siblings, grandparents, aunts and uncles, cousins, and your spouse's family are among the increasingly distant relatives on this list. The state will seize your property if the court exhausts this list and finds that you have no living relatives by blood or marriage.

What Are the California Requirements for Writing a Will?

You must be the following to render a will in California:

An individual who is at least 18 years old (or an emancipated minor)
A sound mind

In this case, "of sound mind" means that you are able to:

know what it means to write a will
know what kind of property you own
know who your relatives are and who they aren't
Have no delusions or hallucinations that would affect what you would do with your property if you had a mental health condition

Though it may seem self-evident, the probate code also states that you cannot use your will to dispose of property that does not belong to you. 6101. Cal. Prob. Code

You must write your will on paper. That is to say, it must be printed on real paper. It can't be stored in audio, video, or other digital formats. (However, see the section below titled "Can I Make a Digital or Electronic Will?") You can type and print your will on a machine or on a typewriter. Handwritten wills are legal in California (Cal. Prob. Code 6111), but they are generally not a good idea.

How Do I Sign My Will in California?

In order to complete your will in California, you must first:

In front of two witnesses, sign your will.
Have your witnesses sign your will at the same time as you, either when you sign it or (if you've already signed it) when you acknowledge your signature on it. 6110. Cal. Prob. Code

Neither witness should be a will's beneficiary. Any gift given to a will witness in California is presumed to be made under duress, and the witness may forfeit the gift if it is greater than what he or she would have earned under the intestacy statute. 6112 of the California Probation Code.

Wills that are holographic (handwritten) does not require witnesses. Code of California Probation 6111.

Is it necessary for me to get my will notarized?

In California, notarization is not necessary to make your will valid. Some states allow you to sign a special affidavit in front of a notary to make your will "self-proving." California, on the other hand, helps you to self-prove your will without using a self-proving affidavit. Your will does not need to be proven to the probate court, and you do not need to make a self-proving affidavit if you sign and witness it correctly. 6113 (California Probation Code).

Is it Possible to Alter or Revoke My Will?

You may revoke or alter your will at any time in California. You will revoke your will by doing the following:

The will may be revoked by burning, ripping, canceling, obliterating, or damaging it.
Making a new will that expressly specifies that the old will is revoked or contains conflicting words. 6120 is the Probation Code.

Unless your will specifically states otherwise, any gift you made to your spouse in your will, as well as any clause naming your spouse as an executor or Trustee, is automatically repealed if you and your spouse divorce or your marriage is annulled. 6122 (California Probation Code).

It's best to revoke your will and create a new one if you need to make adjustments. If you just need to make minor improvements to your will, you can add a codicil to your current will. In either case, you'll need to complete your changes using the same procedures as you did when creating your initial will (see above).

Is it possible to create a digital or electronic will?

You can render a legal will digitally in a few states, which means you can write it, sign it, and have it witnessed without ever printing it. Despite the fact that these "electronic wills" are currently only available in a few states, several more (including California) are considering making them legal. Most states are expected to enable them in the not-too-distant future.

With the help of an estate planning lawyer, you can contest a will or a trust

Our prescreened Estate Planning Law yers will assist you with contesting a will or trust, defending against a will contest brought by others, or simply ensuring that your rights over a loved one's trust or will are secured.

Were you left out of a parent's will by mistake?

Do you have reason to believe your loved one was forced to change his or her trust documents?
Are members of the deceased's family attempting to disprove the claim to the property you were left in the will?
Perhaps the executor of a decedent's estate is failing to fulfill his or her responsibilities to the beneficiaries. Is it possible for you to delete them as executors?

Disputes over Wills and Trusts

When anyone claims they are contesting a will or trust, they are formally requesting that the document be declared void by the court. In will and trust contest situations, you will often see the following scenarios:

A contract was signed while the decedent was suffering from dementia, such as Alzheimer's disease, and thus incompetent.
Someone managing their finances or living with them unduly influenced a weak decedent into changing their will or trust, taking advantage of their near proximity to the decedent.
The Estate Planning attorney who drafted the will or trust was not the same as the decedent's long-time attorney, or, even worse, the individual who will gain from the new will or trust drafted it themselves.

Who Has the Right to Challenge a Will or Trust?

Who may bring trust or will challenge is governed by a set of rules established by the court. An individual who challenges a will or trust must have "standing," which means they must have a financial interest in the case's outcome. For example, if the terms of a new will give you more money or property than the terms of the previous edition, you don't have the standing to challenge the new will.

An heir has the right to contest a will or trust.

A person who will inherit if a deceased person had no will or trust is referred to as a "heir." The heirs of a deceased person are determined by the laws of the state in which the decedent lived. Spouses and children are heirs under California inheritance rules. Other family members (e.g., parents, brothers, uncles, aunts, or cousins) are called heirs if the decedent had no spouse or children.

An heir would have the standing to contest a will or trust if they are not appointed as beneficiaries or if their share is less than what they would have earned if the decedent died without an estate plan.

Beneficiaries are therefore entitled to vote.

Those who are not heirs might have the right to appeal a will or trust if they were listed as a beneficiary in one of the decedent's previous wills or trusts.

Even if the person is not an heir, a person appointed as a beneficiary in a prior version of a will or trust but whose share was either removed or diminished in a subsequent version of the document has the standing to question the current will or trust.

Contesting a Will or a Trust on Legal Grounds

If one of the following scenarios occurred during the execution of a will or trust, the document would be declared void by the court.

Contests of wills and trusts are commonly held on the following grounds:

Unfair Advantage
To persuade others to alter their estate plan, an influencer uses extreme persuasion.
Inadequate ability
A person's mental capacity is insufficient to establish or execute a will or trust.
Abuse of the elderly
Fraudulent activity
When the author of a will or trust is duped into modifying or implementing the text, fraud has occurred.
Forgery
Inadequate Execution
Cancellation

Will the No-Contest Clause bar me from contesting a will or trust?

No-contest provisions cannot prevent you from filing a contest, and they are not as frightening as they seem, according to any seasoned trust and will contest solicitor.

A no-contest clause (also known as an in terrorem clause) attempts to punish beneficiaries who contest a will or trust by preventing them from acquiring the money or property left to them. The clause was originally intended to apply only to beneficiaries who brought contests. However, it has since been extended to include beneficiaries who unsuccessfully oppose contests.

It's important to note right away that contesting a will or trust with a no-contest clause is pointless if the contestant gets nothing under the new will or trust. They have nothing to lose if they are still getting nothing. A no-contest provision will only be a deterrent for heirs who have been left any portion of a decedent's assets under the will or trust they are contesting.

No-contest provisions are difficult to execute when they do apply. New legislation went into effect in 2011 that made California's no-contest provisions much more difficult to enforce.

If you don't have a copy of the will or trust, what do you do?

You'll need to see a copy of the will or trust before deciding whether or not to file a contest. Wills must be filed with the probate court by executors. Trustees must submit a Notification by the Trustee to all trust beneficiaries and descendants, which would either provide a copy of the trust or give the beneficiary the option of requesting a copy from the Trustee.

Executors and trustees, unfortunately, do not always meet their obligations to beneficiaries. Should the need arise an accomplished Estate Planning attorney will assist in obtaining will and trust documents quickly.

Is there a deadline for filing a contest?

Since there is a public policy favoring the quick resolution of estates and trusts, the time limits for contesting a will or trust are usually much shorter than in other areas of law.

Whether or not a will has been "probated" determines how much time you have to appeal it. When a will is "probated," it ensures that it has been approved by the probate court. Contesting a will before the petition for probate has been accepted is much more advantageous.

According to Probate Code section 16061.7, you have 120 days after receiving a Notification by the Trustee and a copy of an irrevocable trust to appeal the trust.

Since the deadlines are so small, your best bet is to see whether a will or trust contest is needed and, if so, to file as soon as possible. Estate Planning Law yers can assist you with this procedure.

Defending Will or Trust Contests

When a will or trust is challenged, such persons, such as the executor or administrator of the will, the Trustee of the trust, or the beneficiaries, may be called upon to defend the will or trust. Our prescreened Estate Planning attorneys often answer the following questions for clients in similar situations:

During a trust or will challenge, what are my rights and responsibilities as an executor or Trustee?
When there is a no-contest clause, does a former beneficiary have the right to file a contest?
Is it possible to use the decedent's assets to pay for a Estate Planning attorney's defense?
When does an executor or Trustee stay out of it and let the beneficiaries settle their differences among themselves?

During a contest, a trustee or executor has certain responsibilities.

Executors and trustees are well aware that they owe fiduciary obligations to beneficiaries. Will they owe these duties to the beneficiaries of the current will or trust—or to the beneficiaries of the prior will or trust—during a will or trust contest? Also, what rules apply to trustees specifically?

Unless proven ineffective, wills and trusts are presumed true.

Until proved otherwise, wills and trusts are considered legitimate. As a consequence, in the most recent edition of the will or trust, executors and trustees owe fiduciary obligations to the beneficiaries. This isn't to say that executors and trustees should ignore a pending contest and distribute the assets; rather, they should keep the assets secure until the contest is resolved.

Trustees are subject to specific laws.

What happens if the Trustee is also a beneficiary of the new trust? Will they use trust funds to employ an Estate Planning Law yers to represent them in a trust contest? When does a trustee step back and let the beneficiaries sort things out for themselves?

While the answers to these questions differ depending on the specific terms of each will or trust, as well as the circumstances surrounding each case, the following general guidelines apply:

Trustees have the right — and in certain cases, the duty — to defend against a beneficiary's trust contest, and they can employ an Estate Planning Law yers for trust funds.
And if a trustee is a beneficiary of the new trust, he or she retains the ability to use trust funds to protect the trust contest.
Although trustees have the right to use trust funds to defend contests, they will be required to refund those funds if they lose; thus, caution should be used when determining whether to defend the contest.
When using trust funds to protect against trust contests, trustees should be mindful of the attorney-client privilege's limits. Even if the trust specifically states otherwise, these restrictions apply.

Beneficiary Rights During a Competition

Beneficiaries' rights in a will or trust contest differ depending on whether they are beneficiaries of the previous will or trust or the current one, as well as whether they want to participate in the contest.

The Right to a Distribution

If you are a recipient of a disputed will or trust, you will normally have to wait until the contest is resolved before receiving your inheritance. However, if you are entitled to an inheritance regardless of the result of the conflict (i.e., you are a beneficiary in both the current and prior versions of the will or trust), the undisputed portion of your share should be transferred to you without waiting for the contest to be resolved.

Be Wary of the Freeloading Recipient

If someone else, such as another beneficiary, executor, or Trustee, is already bringing or defending a contest, you might think it's a good idea to sit on the sidelines. After all, why not? If someone else has hired an Estate Planning Law yer and is contesting the will, you will be able to enjoy the benefits of a favorable result without having to pay any legal fees or performing any work.

These "beneficial freeloaders" could sometimes be mistaken for a variety of reasons:

All beneficiaries may want a seat at the negotiating table while a will or trust contest is underway. Freeloaders can forfeit their right to define the terms of any settlement if they refuse to participate. Settlements are common in civil litigation, with 97 percent of them ending before trial.
Beneficiary freeloaders will be required to pay a portion of their litigating co-beneficiaries' legal bills anyway, so they can consult with an Estate Planning attorneys to see if "freeloading" is in their best interests.
Beneficiaries who do not participate in a contest are unable to present evidence at a trial, raise charges or defenses, call witnesses, or do many of the other things that participants may do to defend their own interests.

The individual defending the contest will buy out the beneficiary who is contesting the will or trust. The contesting beneficiary would almost certainly have to accept that the will or trust is legitimate and drop the case as part of the settlement. It's probably too late for a beneficiary on the sidelines to launch a new contest at this stage.

Gifts to Those Who Aren't Qualified

Certain individuals are automatically excluded from being beneficiaries of wills or trusts. This is done to protect elderly elders from those who have a one-of-a-kind opportunity to commit fraud or exert undue control. The categories of people who may be deemed "disqualified" (along with their family members, staff, and cohabitants) are listed below.

Caregivers
Wills and trusts drafters (e.g., attorneys, estate planners)
Fiduciaries who assisted in the preparation of the will or trust (for example, powers of attorney, trustees, and conservators).

Can an estate lawyer help invalidate gifts to disqualified people?

Gifts to ineligible people may be identified and invalidated with the aid of an Estate Planning attorney. Some of the considerations that legal counsel will consider when deciding your case are mentioned below.

Why are certain people disqualified?

If a beneficiary is deemed a "disqualified individual," such as the drafter of a will or trust, a fiduciary, or a caregiver, they must show they did not exercise undue control or deception in order to obtain the property left to them.

The aim of Probate Code section 21380 is to protect elderly people from people who are in a unique position to receive gifts by deception, threat, duress, or undue influence. Learn more about the laws governing caregivers in California.

Is There an Exception to the Rule of Disqualified Persons?

When a "disqualified individual" was either related to or residing with the decedent, one of the most common exceptions applies.

Another exception allows for the use of a "certificate of impartial examination," which is a document signed by an independent attorney after advising the decedent on the implications of leaving a gift to a disqualified individual and finding that unfair interference or fraud played no role in their decision. Speak with an Estate attorney to see if there are any other exceptions.

Disqualified Persons Face Harsher Penalties

Disqualified people who can't prove they're guilty of unfair control or fraud face harsh penalties, which can include both:

paying the other party's legal fees and damages
All gifts left to the individual under a previous will or trust are forfeited.

If spouses, children, or unmarried couples are left out of a will or trust, they may still be eligible to inherit, depending on their circumstances. An Estate Planning Lawyer will assist clients in determining their rights and enforcing them.

Community Property Rights for Spouses

California is a community property jurisdiction, which ensures that all assets gained or debts accrued over the course of a marriage belong equally to all spouses, regardless of who brought the assets in or incurred the debts. As a result, half of all community property obtained after the marriage immediately belongs to the decedent's spouse and is not able to be disposed of by the decedent's will or trust.

A decedent's will or trust can often go too far and seek to dispose of community property that is legally the spouse's. In these situations, it is important that the partner maintains an Estate Planning attorney to protect their community property rights.

Spouses and children who have been left out

Some spouses are left out of wills or trusts, not because the deceased did not want them to inherit, but because they married the decedent after the will or trust was already signed. A partner who has been unintentionally left out of a will or trust (known as a pretermitted spouse) will almost always be allowed to inherit.

Pretermitted children – children who have been unintentionally left out of a will or trust since they were born either (1) after the contract had been executed or (2) before the document had been signed, but the decedent was either unaware of the child's existence or assumed them to be dead – are similar to pretermitted spouses.

Unmarried Couples' Rights

Non-married partners can have statutory rights to receive each other's money or property in some states, including California if it can be seen that they had an arrangement or commitment to continue to care for each other in the event of one partner's death.

Non-married people who live together and plan to support each other financially for the rest of their lives or vow to leave property to their spouse when they die can make enforceable claims. After the landmark case Marvin v. Marvin (1976) 18 Cal.3d 660, these arguments are often referred to as Marvin acts.

Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

Why Should You Consider Establishing A Trust Instead?

Wills must go through probate in California, no matter how useful or important they are. This procedure can take months and prohibit the beneficiaries from having access to their land. To prevent this, many Californians choose to place a large portion of their assets in a trust, which ensures a seamless transfer of property from a decedent to a beneficiary. Property and assets are transferred to the trust, which is controlled by a trustee, who is then responsible for distributing the assets according to the trust's terms.

Trusts are very versatile and can be carefully designed to minimize estate taxes while also protecting beneficiaries and avoiding benefit distortions.

Families with special-needs children should think about the impact of inheritance on their children's government benefits. A special needs trust will help to protect the child's eligibility for benefits while also helping to provide for the child's needs well into the future by putting the property and its distribution in the hands of a trustee rather than the child.

Since the properties put in a trust are not owned by the grantor, they are covered from property division in the event of a divorce. This can be a particularly useful tool for small business owners who want to keep ownership of their company in the family.

Find a Will and Testament Attorney in California

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