After your death, the person you name in your will to manage your estate begins the process of probating your will. Your will is authenticated, and your personal representative begins securing your property, identifying your heirs, and assessing your final debts and legal obligations. Your will dictates the distribution of your property after payment of your final debts.
However, your heirs or other interested persons could contest the terms of your will. If your will is overturned, your wishes may not be carried out. Consulting a California estate-planning attorney when drafting your will is one of the best ways to avoid a will contest.
Steps You Can Take to Avoid a Will Contest
You cannot stop someone from contesting the terms of your will after your death. However, you can make it more difficult for someone to have grounds to contest the will and make it less likely that a will contest succeeds. Steps you can take to protect your will from a contest after your death include:
- Include a no contest clause in your estate. A no contest clause states that if someone contests your will, then that person cannot inherit from your estate. However, no contest clauses can only be enforced in California under very specific, limited circumstances. In many cases, if the court finds that the person had probable cause to contest the will, the person is not disinherited if that person loses his or her battle to contest the will.
- Properly execute your will. Improper execution of a will could give someone grounds to contest your will. Even though California recognizes wills that are handwritten and signed without witnesses, it is best to have at least two witnesses sign your will at the same time you execute the will who are not beneficiaries of your estate.
- Include a self-proving clause in your will. A self-proving clause is a statement by the witnesses that you (the testator) had the capacity and intent to create the will and there appears to be no undue influence being exercised to force the person to sign the will. A notary public’s signature is also required stating that the information in the affidavit has been sworn to and acknowledged by the witnesses and the testator.
- Obtain proof of mental capacity. If you believe that one of your heirs may attempt to contest your will alleging you lacked the mental capacity to execute a will, you might want to obtain at least two written statements from physicians who have examined you and determined you have the mental capacity to execute legal documents. While this will not prevent someone from contesting your will, it could make it much more difficult for the person to succeed in their endeavor.
- Discuss your wishes and desires with your family. One of the reasons that family members contest a will is that they believe the terms of the will are not what you intended as your final wishes. Discussing your will with your heirs in a candid fashion may be difficult, but it can reduce the chance of a will contest because an heir believes he or she was to receive an inheritance even though you never made any explicit or implied statements that supported the person’s assumption.
Contact a California Estate-Planning Attorney for Help
Again, one of the best ways to ensure that your wishes are carried out after your death is to create a valid will. A California estate-planning attorney can help you avoid mistakes or errors that could give rise to a contest of your will. Your attorney can also help you take additional steps to protect your will and your estate, such as including trust agreements in your estate plan, if you believe that an heir may contest your will after your death. Contact us today for a consultation.
Estate Planning Attorneys Serving San Mateo County, Belmont, Burlingame, Redwood City, Foster City, and Hillsborough.