Reviewing a loved one's will after their death can be a painful, uncomfortable, and stressful experience. Beneficiaries, descendants, and individuals who were not included in the will often have severe disagreements with one another. It may be appropriate to hold a formal will contest to determine the facts for all parties concerned. If you wish to challenge the legitimacy of a will, you must act quickly, particularly if you are grieving. An Estate Planning Lawyer might be able to help you get what you are rightfully entitled to.

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Find An Estate Lawyer for Will and Trust Litigation

An interested party will challenge a will before or after it is admitted to probate in order to prevent probate of the tendered will or to revoke a will that has already been admitted to probate, but this must be done within a certain amount of time. While trust is a legal document, it is frequently open to interpretation by all parties concerned, so it must be written with and scrutinized for specific language. A legal dispute can very well ensue if all of the facts are not fully clear.

What Happens in Probate Court?

To comprehend the process of contesting a Will, you must first understand some fundamentals of the probate process. The estate of a decedent is made up of all of the decedent's properties, both tangible and intangible, at the time of death. Probate is the formal method of identifying, locating, valuing, and ultimately distributing specific properties to the estate's intended beneficiaries and/or legal heirs. During the probate period, creditors of the estate are also informed and given the opportunity to file claims.

Suppose the decedent left a legitimate Last Will and Testament. In that case, the Executor appointed in the Will is in charge of administering the probate process, with the terms of the Will determining how the estate assets are dispersed.

Suppose the decedent dies intestate (without a Will). In that case, someone usually volunteers to be the Personal Representative, who then manages the estate's probate and distributes the estate properties according to California's intestate succession rules.

What is the difference between a will and a trust?

A will is considered a testamentary text, which means it must fulfill specific criteria in order to be legal. A will must be signed by the individual whose will it is (the testator), and two witnesses must witness the signing. In the absence of witnesses, a holographic will is also valid; however, all significant terms of the will must be written in the trustor's own handwriting and signed by them. Wills in California are never notarized because it is pointless. According to California state law, these are the only two types of wills that are acceptable.

Trusts, on the other hand, may be either oral or written. However, a registered trust is often preferable to an oral one since the latter can be more challenging to verify. Registered trusts must be signed by the individual who is the beneficiary of the trust (the trustor), but that is all that is needed to render them legitimate. There are no witnesses or notarization requirements for trust. However, although the majority of trusts are notarized to show that the person signing it was the appointed settlor, notarization is not a legal necessity in California. You can ask your Estate Planning Lawyer if there are any other confusion on the matter.

Is it Possible to Dispute a Will?

Since a Will contest cannot be submitted by just anybody, the first to be considered in any Will challenge is whether or not you are eligible to file for a challenge of the Will. To challenge the Will, you must have "good standing" in the eyes of the law.

This simply means you must have the legal authority to file the challenge. In California, only an "interested individual" has any standing in a Will contest. An individual who has something 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.

A will is not something that anyone will challenge. A case challenging the validity of a final will and testament can only be filed by those who will be directly and financially impacted by the terms of the will if the court approved it as is. These individuals are said to have "standing" in legal terms.

Heirs-at-Law who have been disinherited

  • If the decedent dies without a will, an heir-at-law is someone who is so closely connected to the decedent that she would have earned a share of the estate. Heirs-at-law has the legal right to challenge a will.
  • When someone dies without a will, property transfers to heirs-at-law through a mechanism known as "intestate succession." In certain states, this ensures that his spouse or immediate descendants will be the ones to inherit first. His children and grandchildren are direct descendants. If the decedent was not married and left no living children or grandchildren, only parents and more distant relatives, such as siblings, would inherit.
  • If a decedent leaves three children but only provides for two of them in his will, the third child should have legal standing to appeal the will. However, this does not guarantee that she will win the case. She is unable to overturn the will simply because she has status and was not included in it. She must have a valid reason.
  • This means she'll have to prove to the court that the deceased didn't leave her out of the will on purpose or that the will isn't valid for any other cause. Perhaps the deceased was compelled to write it or was mentally ill at the time.
  • Owing to its invalidity, the will may be thrown out, and the estate would be divided as if the deceased had died intestate or without a will.

Beneficiaries and Fiduciaries in a Previously Executed Will

  • Any individual or organization included in an older will would have enough legal right to contest a more recent will if he was later left out of the latter. If his share of the estate was diminished, he would have standing as well.
  • Similarly, if a person was appointed as a fiduciary or executor of the estate in the first will but was replaced in a subsequent will, he should have sufficient standing to contest the more recent last will and testament.
  • The same caution should be exercised. These individuals will have to show that the following will be invalid for whatever reason.

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Who is ineligible to contest a will?

If you weren't listed as a beneficiary of another will or aren't an heir-at-law, you probably don't have legal rights to file a will appeal. And if you suspect the will is invalid, this is the case.

Minors usually are unable to challenge a will because they do not have the legal capacity to do so until they reach the age of majority. However, most states allow a parent or guardian to contest a will on behalf of an infant.

Clauses that state "no contest."

Some wills have "no contest" clauses, which may cause complications. These stipulate that beneficiaries will forfeit the inheritance provided by the will if they fail to appeal it in court and lose the will contest. Otherwise, the court's decision will be the last word.

Of course, if a beneficiary is wholly excluded from the will, she has nothing to lose by contesting it.

Contest Requirements

  • The testator lacked mental capacity.
  • When writing out the will, the testator, or the person to whom the last will and testament belong, must be mentally capable.
  • The testator is deemed to have testamentary potential if he or she is of sound mind when writing the will.
  • That he or she is aware of the implications of writing a will and naming beneficiaries, as well as the nature of his or her estate.
  • The testator was swayed in some way.

It is called "undue control" when a relative takes advantage of the testator by maliciously persuading them to bequeath a more significant share of the estate. If a will was forced upon others, it might be contested in court.

Undue influence arises when an individual forming a will or trust is weakened in the sense of contesting a will or trust in California (in a weak mental state). The influencer uses intimidation on the testator, thus replacing the testator's original purpose with his or her own.

The testator's diminished mental state is comparable to the mental state needed to declare lack of ability. The other requirements that must be met in order to declare incapacity do not have to be met in order to show excessive control. Unless the testator lacked ability at the time of signing the Will, the will is assumed correct. An individual with dementia will have good days and bad days, and on the day of signing a will, he or she may have capacity. As a result, proving a lack of capability can be difficult.

However, you must develop mental weakness to show undue power. You must show that the individual who profited unduly took advantage of the testator's mental frailty. Your Estate Planning Lawyer will be able to help you stand your ground.

How Can Undue Influence Be Proven?

Various factors can converge to prove undue control, such as:

  • A testator's mental weakness, infirmity, or disability causes his or her free will to be altered or confused.
    • A secret relationship exists between the testator and the individual who is exerting undue control.
  • The Will's execution benefited the suspected wrongdoer unduly.
    • Provisions in the testator's will that contradict the testator's earlier mentioned intentions
  • When writing the will, laws were violated.
    • In court, a will that isn't legally binding can be challenged. To be considered legitimate, the will must adhere to the following rules:
      • To be considered authentic, wills must be duly signed by two witnesses. (The witness cannot be a beneficiary in some states.)
      • If the testator made a change to the will, the new will must be signed by two witnesses.
      • The testator has the authority to allocate the assets specified in the will. If the testator's spouse is still living, he or she usually is not entitled to distribute property obtained after the marriage in community property states.
      • The will was coerced into being signed by the testator.
        • Wills that are forged or fraudulent are often invalid. In certain states, holographic wills, which are handwritten and may not contain all of the requisite legal formalities, may be deemed legitimate if the probate judge agrees, but they are more susceptible to challenge.
      • A more recent edition of the will is available.
        • When a testator makes a change to his or her will, the difference should revoke all previous versions of the will. As long as the will has been properly formed, only the most recent version is accurate.
        • A codicil is one way to change a will, but it does not automatically cancel previous versions of the will, so it might be easier to simply create a new will to prevent confusion among your heirs.
      • The will remains unfinished.
        • The will would be deemed insufficient if such legal requirements are not met. This may include not signing the will, leaving blank spaces where beneficiary names should be, or simply omitting text where it is required.

How to Challenge a Will

You will only have a limited period of time to challenge a will, depending on your state. When you obtain notice of probate, it means the deceased has died, and his or her properties are being divided according to the will.

You must file the lawsuit within this time period, which is known as the statute of limitations. You'll have few legal choices once the statute of limitations has run out.

The lawsuit will be filed on your behalf by an Estate Attorney. Lawyers are expensive, and they can take a significant percentage of your financial benefit, ranging from thousands to tens of thousands of dollars. However, an Estate Attorney will save you a lot of time and effort, as well as increase your chances of winning the contest (or warn you if it's unwinnable).

Regardless of whether you use an Estate Attorney or not, you must file a lawsuit with the probate court of the county where the deceased died. A court clerk should be able to guide you and provide you with the necessary paperwork to file your application.

You should be aware that contesting a will could entail many of the same legal procedures as other civil trials. You will be asked to take a deposition and present testimony on your behalf during the discovery process. Prepare to gather evidence to support your case, as well as any other things requested by the opposing counsel. You may also be called to the stand to testify.

Settlement

Contesting the will is unlikely to succeed, and it will cause probate to be delayed for months or even years. Any beneficiaries will instead agree to a settlement with you as a result of the delay.

The settlement would most likely be less than the amount you'd get if you won the challenge, but it will save you legal costs and keep you out of a lengthy probate process that might strain your family's relationship.

What happens after the will contest

You gain ownership of the properties you declared if you win the will contest. This could take the form of a check for the money you owe or a direct deposit into your bank account.

You will receive any real estate that you won in the contest. Verify that your name appears on the property's title and that the amended title has been duly registered with your county. If a house already has a mortgage on it, make sure you take over payment obligation and that the lenders are informed that you will be receiving mortgage statements.

However, if you lose the will appeal, you will lose other estate property that you are owed. If the other beneficiaries file an appeal, expect another long and expensive hearing.

How to avoid having your will challenged

If you're the testator, though, you'll want to make sure your will is uncontestable. That requires following all legal formalities to eliminate ambiguities in the will, which can necessitate the use of an Estate Planning Lawyer. You may also follow the steps below:

  • Add a no-contest clause to the contract.

    • The no-contest clause does not rule out the possibility of a challenge to the will. However, it does mean that someone who mounts a challenge will be disinherited entirely if the challenge fails. Beneficiaries are discouraged from contesting a will simply because the value of their bequest is too small.

  • It should be notarized.

    • The notarization of your will is not allowed by statute. However, doing so "proves" the will, implying that the task will be even more difficult. A notarized will, on the other hand, can still be generated under false conditions, so notarization just goes so far.

  • Make your assets payable in the event of your death.

    • You will name beneficiaries on your savings and retirement accounts, making them payable after you pass away. As long as the heir is alive, payable-on-death accounts (also known as transferrable-on-death accounts) do not go to probate because the beneficiary has a right to them regardless of the will.

    • Since a revocable living trust is treated as a personal document that should be kept confidential, it is an excellent vehicle for avoiding a will contest. In contrast, if a will is filed with the probate court following your death, it becomes a public record that everyone may read.
    • Aside from that, revocable living trusts are "living" documents that protect all aspects of your life—both when you're alive and well and after you pass away. Wills are "empty" documents that take effect only after you pass away.
    • Consider putting issue beneficiaries into discretionary lifetime trusts if you're worried they'll only squander their inheritance. Lifetime trusts may be rendered versatile and used to help a trustee meet a variety of personal and financial objectives.

Statute of Limitations in Will Contests

A suit to challenge a will cannot be filed until the will is offered to the Court for admission. The Court will decide whether or not a will has been filed after it has been filed with the Court. It is not a will in California unless the Court declares it to be one. The probate process establishes the validity of the will and requires the court to execute it according to its terms. As a result, until the will is offered to the Court and a motion to probate the will is filed, there is little to challenge. You must file the will until the Court decides it is a legitimate will if someone files a motion to probate the will. It is preferable to attend the hearing and object to the will's admission if you receive a petition for probate to have the will accepted.

If a lawsuit is filed alleging that an individual died without a will, you must file your will as soon as possible.

In California, an individual has 120 days from the day the probate is opened to request that the Court reconsider its ruling that the will is valid or withdraw its ruling that the will is good. To do so, you must file a formal, written challenge to the will, outlining the legal reasons for its invalidity.

Trust Contests

Trusts can be challenged for many of the same reasons that a will can, such as a lack of testamentary power, excessive control, or the failure to follow the proper procedures. The trustee's conduct can also be challenged by the beneficiaries as a breach of the trust's terms and intent. Most settlors would like a no-contest clause in the trust that terminates a beneficiary's interest if the trust is challenged unsuccessfully.

  • To have the standing to question the trust, the contestant must have a financial interest in the trust or be someone who would have inherited in the event of intestacy. If a will contest occurs concurrently with the administration of the assets, a trust proceeding begins with the filing of a civil complaint or petition by the contestant.
  • The disputed portion of the trust is to be stricken, according to a contest petition. Since legislatures and courts tend to respect the settlor's purpose, contest petitions are traditionally challenging to win. The court will make every effort to follow the settlor's written instructions and assume that they accurately represent his or her intentions. The court assumes that trust contests frequently arise when a friend or family member was expecting to inherit a more significant portion of the settlor's assets.
  • A trust is invalid under the Uniform Trust Code (UTC) if it has unconstitutional or contrary to public policy intent, such as restricting religious freedom or the right to marry. Some states stipulate that trust must not break the law against perpetuities, which states that a trust cannot last longer than 21 years plus the life of the individual who formed it. If one of these conditions is broken, only that condition, not the whole trust, is broken.
  • The test used to determine whether the testator had sufficient mental capacity to establish a valid trust is usually identical to the test used to determine whether the testator had sufficient mental ability to make a valid will. The settlor must have been at least 18 years old and capable of knowing the extent of creator's property and the natural objects of his or her bounty in order to have capacity. Family members such as partners, infants, and siblings are among the "natural artifacts."
  • If the settlor's mental capacity was discussed near the time the trust contract was signed, medical records are a reliable source of evidence for proving lack of mental capacity. While a medical document is unlikely to represent the settlor's mental capacity at the time the document was signed, such documents may be useful if they were prepared close to the time the document was signed.
    • Friends and family members may also be an excellent source of evidence, mainly if they spent a significant amount of time with the settlor and were acquainted with his or her wishes and mental state at the time the trust was drafted. The testimony of those close to the settlor will help the court determine if the settlor had the necessary mental capacity. In some instances, expert experts may also support the court.
  • Legal trusts are the product of the settlor's free will and volition, just as valid wills are. The resulting parts will be struck if a settlor's perceptions are based on lies, errors, or deceptions.
  • A settlor's trust is null when he or she executes it under the mistaken assumption that he or she is accomplishing something else. The testator's ability to formulate a reasonable trust is hampered by an insane illusion. To prove an insane illusion, the contestant must show that the settlor insisted on believing supposed facts that were untrue and that the delusion influenced the settlor's property disposition. Only the portion of the trust that was destroyed by the mad fantasy fails, but the fallacy has the ability to destroy the entire trust. A delusional fallacy is distinct from incapacity or error.

If a court determines that a trust or a portion of a trust was formed as a result of undue interference, the trust or a part of the trust can be revoked. This happens when the settlor's wishes are subverted in favor of someone else's. The most popular way to show undue influence is by circumstantial proof rather than direct evidence. The undue influence cannot be established solely on the basis of intent and opportunity. The contestant must usually prove that another person influenced a vulnerable settlor and that the influence resulted in a trust clause that expresses the influencer's purpose rather than the testator's.

Using the services of an Estate Planning Lawyer to draft a trust reduces the chances of trust lawsuits after the settlor's death.

When Is It Possible to Amend a Trust?

In California, the grantor's right to amend a trust is determined by the form of trust and the terms of the trust. An irrevocable living trust enables a grantor to remove such properties from his or her estate over his or her lifetime, and it is ordinarily irreversible. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

Irrevocable trusts, on the other hand, may be changed if both the grantor and the beneficiaries consent. Additionally, after the grantor's death, the beneficiaries will be entitled to petition the probate court to alter specific provisions of an irrevocable trust.

A revocable living trust may also be modified by the grantor. Strikeouts and handwritten amendments to the initial contract may be used to amend a revocable trust, which usually necessitates additional paperwork. Date and signature are required if the alteration is made by a different document or changes to the original trust document. If the changes are significant, the trust can need to be "restated" or completely rewritten.

The following are some of the most common reasons for trust restatements or amendments:

  • The addition of a beneficiary or the updating of personal details is also possible options. After a marriage, birth, or other events, a grantor may add beneficiaries.
  • A beneficiary's exclusion. A common problem that may lead to litigation is an amendment that excludes a beneficiary or beneficiaries.
  • Changing the asset distribution. Since circumstances alter, the grantor may need to revise who receives which properties.
  • Changing the trustee's replacement. The grantor may wish to appoint a different trustee in some instances.

The trust clauses may be added to, revoked, or changed. Any adjustment to the trust parameters necessitates a change to the trust parameters. The grantor, for example, may wish to eliminate limitations that limit beneficiaries' ability to obtain assets before they reach a certain age.

What Causes a Trust Amendment to be Disputed?

After the death of a grantor, the trust beneficiaries may decide to appeal a trust change. The following are some of the most common reasons for contesting trust amendments:

  • Incompetence.

    • You might be able to argue that the grantor was not of sound mind when amending the trust, depending on the circumstances. This could be true in cases where the trust grantor is elderly or ill.

  • Undue influence.

    • A caregiver or another individual may try to persuade your loved one to amend a trust in their favor. If that's the case, you may be able to challenge the trust on the basis of excessive control.
    • A testator must consider the essence of the will, his or her relationships with family members, and the quantity and type of property held in order to enforce a valid will. To have the mental capacity to execute a good will, these three components must be present. Upon opposition by a family member, the probate court has the authority to find the will or trust void if an outside party or caretaker exerts undue control to undermine the testator's free will.
    • If a will meets those criteria, the California Probate Code establishes a presumption of fraud. When a testator is reliant on a caretaker who receives a transfer under the will or trust, an assumption occurs. Where a statutory presumption of undue influence arises, the individual accused of undue influence has the duty of ensuring there was no fraud.

  • Documents with errors in them.

    • California trust law is complicated; in some cases, a grantor can only amend a revocable trust using the procedures outlined in the trust document. As a result, you might be entitled to question an amendment's validity on these grounds. Due to the complexities of this type of trust contest, you should always consult with an Estate Planning Lawyer about your specific situation.
    • Holographic Will California
      • The California Probate Code exempts holographic wills from the technical standards that apply to formal wills. As long as the testator writes and signs the entire document in his or her own handwriting, holographic wills are legal.
      • Amendments to current wills are known as codicils. To be legitimate, they must obey the legal procedures for formal wills or holographic wills.
      • When an individual has a legally executed will, but then dies, a holographic will or codicil appears, purporting to alter the original will, problems arise. Family members will believe that the holographic will or codicil is the object of undue interference or incapacity in such cases. The question of whether the holographic will or codicil is legally enforceable to alter or invalidate the original will would have to be litigated by family members.

    • Harmless Error Rule
      • A will to follow clear legal rules in order to be legitimate. Many testators, however, do not follow the technical rules and specifications. In some instances, the court can also consider faulty wills or trusts for probate. A "harmless mistake" rule is allowed under the California Probate Code. The court can overlook minor procedural or technical errors under this rule if the testator's motive can be shown by clear and convincing proof.

Statute of Limitations on Contesting Trusts

A trust is an entirely different beast. A trust contest must be filed within 120 days of the date the notice under Probate Code 16061.7 is mailed. This notice contains detailed, mandatory details that must be given to the trust's heirs at law and beneficiaries. If the beneficiary demands a copy of the trust and it is not provided, the beneficiary has an additional 60 days to challenge the trust. However, contesting the trust during the 120-day span is preferable.

If a beneficiary receives the notice but does not challenge the trust within the 120-day period, the beneficiary loses the right to contest the trust forever. The deadline to challenge the trust does not begin to run if the trustee never sends the notice to the beneficiary. If you do not receive the notification and do not challenge the trust, the Court will rule that you have waited too long and will not allow you to contest it.

Trust and Will Fraud

Having all of a loved one's affairs in order prior to his or her death is often the best scenario since it reduces disputes over who owns what. Wills and trusts may be modified up until a loved one passes away, even though they are trained years in advance to prevent conflicts.

Elderly people in California will be presumed competent and will be able to give away money and properties before they die, according to state law. When elders suffer from a cognitive disability and a lack of mental ability, they are unable to make decisions or vouch for what they had initially expected. You might need an Estate Planning Lawyer to help you through this complicated process.

There are many signs that will or trust fraud has occurred, but the majority of them include a paper trail that can be covered up by the perpetrators after the elder has died, making a will and trust fraud more difficult to detect than other types of elder abuse or neglect. If you find yourself asking such questions, such as the ones below, you should investigate the probability of will and trust fraud:

  • How did they manage to get so much more money than the rest of us?
  • Was my loved one truly near enough to leave this individual this much money (or any money at all)?
  • What happened to all the money in this account?

Here are some red flags to watch out for:

  • The will or trust excludes or disinherits a close family member (such as a child or spouse).
  • The trustee or administrator keeps making excuses for late responses, communication, distributions, and reporting.
  • For basic needs such as food, clothes, accommodation, and medical treatment, the elderly person depended on a significant beneficiary.
  • Typically just before death, the elderly person suddenly changed their will or trust.
  • Strangely, the trust or will seems to favor a non-family member, such as a caregiver, lawyer, or accountant, over the elder's actual family or loved ones.
  • Property is regarded as missing if the will or trust instrument was produced by the elder or another layperson or if it was not properly signed or witnessed in compliance with California state law.
  • Shortly before his death, the elderly person gave away a large sum of money or land.
  • Sometimes just before death, the elderly person changed or formed several wills or trusts in a short period of time.

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A forensic accountant may also be able to examine and discover signs of will or trust fraud for you, such as:

  • The estate accounts contain a number of large credit card bills; however, the deceased person did not use a credit card prior to their death or was unable to do so due to their physical or mental illness.
  • The tax returns for a deceased person's bank account show a high interest figure from the previous year, but the fund has a small remaining balance when they die. This could indicate that money has been taken from the account by a thief.
  • A vehicle or other valuable object was purchased under the deceased's name, but they did not or could not use it at the time of purchase, implying that it was bought for them by someone else.
  • Significant amounts of money were withdrawn from the deceased individual's bank account and issued to others in the form of checks in the days leading up to their death, implying that the perpetrator(s) might have written statements to themselves from the elderly individual for the sole purpose of their own financial benefit.

If you have any of these concerns or see any of these warning signs, you can contact an experienced Estate Attorney right away.

There are many forms of will and trust fraud in California. A typical example is a case in which the trustee engages in self-dealing or other unethical behavior that harms the trust's beneficiaries. The trustee owes the beneficiaries a fiduciary duty to behave in their best interests. If the trustee fails to do so, the beneficiaries will sue the trustee in probate court. In any case, the beneficiaries will sue the trustee for punitive damages and have the trustee dismissed by the court and replaced with a new trustee.

Find A Will and Trust Contest Attorney in California

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