Contesting Wills & Probate

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One of the basic components of an estate plan is a Last Will and Testament, or will, which provides for the management and distribution of your estate after you pass away. While a will must be prepared in accordance with applicable trust and estate law and validated through the probate process, it is not uncommon for disputes to arise among beneficiaries. Whether the distribution plan of a will is called into question, an heir has been disinherited, or another controversy emerges, the validity of a will can be challenged in a legal proceeding referred to as a will contest.

At Loew Law Group, PLC, our trust and estate litigation attorneys represent clients in a will contest throughout San Mateo County including Belmont, Burlingame, Foster City, Hillsborough, and Redwood City. We leverage our knowledge as estate planners to represent personal representatives and beneficiaries when a will is challenged. When you become our client, you can rest assured that your rights will be protected.

What are the legal grounds for contesting a will?

To bring a will contest in California, a party must have legitimate interest in the estate, such as being an heir, a beneficiary, or a party who stands to inherit. In addition, there must be a valid legal reason to challenge the will. Generally, the grounds for a will contest include:

  • Improper execution  — To be valid, formalities must be followed for a will to be considered validly executed. In short, a will must be in writing, and signed by the person making it (the “testator”) and by two witnesses who saw the testator sign the will. If these formalities are not strictly followed, the will may be subject to a challenge.  
  • Lack of testamentary capacity — The testator must be of sound mind at the time the will is executed. This means that the testator must have known what property he or she owned and understood the effect of executing the will. Given that people are susceptible to dementia as they age, claims that a decedent lacked testamentary capacity are not uncommon.
  • Undue influence — A will may be considered invalid if another individual coerced the testator into executing the document, such as one of the beneficiaries or a caregiver who may have had undue influence over the testator.
  • Fraud — A testator may be tricked into signing a will when he or she is presented with another legal document and told that it is another document such as a power of attorney. A will that is procured by fraud is often associated with testamentary incapacity.

In addition to the validity of the will being challenged, the competence or the capacity of the executor may also be called into question. Moreover, an executor in California is considered to be a fiduciary and can be held liable for mistakes or misconduct. On the other hand, a will cannot be contested merely because a party is not satisfied with the distribution plan. Ultimately, if the court deems the will to be invalid, assets may be distributed according to intestacy laws of California, or according to a prior will.

How to Avoid a Will Contest

As estate planners, the attorneys at Loew Law Group know how to prepare a will that can withstand a will contest. At the same time, there are a number of steps you can take to avoid a will contest, including:

  • Don’t Delay — One common mistake people make is to procrastinate and then draw up a will when their physical or mental health is declining. A person who lacks testamentary capacity cannot make a will; lack of testamentary capacity is a leading reason for will contests.
  • Use a No Contest Clause — The California Probate Code allows for the inclusion of a no contest clause in a will, also referred to as an “in terrorem clause.” A no contest clause typically states that if a beneficiary challenges the will, he or she will not receive anything. If a court determines that a contestant filed a contest without probable cause, the contesting party may be completely excluded from any distribution under the will.
  • Create a Trust-based Estate Plan — Given that a will is a public document, it is vulnerable to disputes that may lead to a will contest. By creating a revocable living trust, you transfer ownership of your property to the trust, which does not have to go through the probate process. Nonetheless, trusts must go through an administration phase during which challenges may also be raised.
  • Avoid Undue Influence — The best way to protect your interests is to work with your attorney privately and not include the beneficiaries in your discussions about the will.  Once your will is in place, you should discuss your decisions with your family to avoid misunderstandings and minimize the risk of disputes.

Call Our Attorney for Contesting Wills in San Mateo County

At Loew Law Group, PLC, we know that losing a loved one is never easy and challenging the validity of a will can compound the emotional burden. For this reason, we often encourage the parties to reach a negotiated settlement. At the same time, our trial attorneys have a proven track record of achieving successful outcomes in probate court. Whether you need assistance drawing up a will or have concerns about the validity of a loved one’s will, you can rest assured that we will protect your interests. Please contact our office today to speak with our attorneys. We help residents of San Mateo County including Belmont, Burlingame, Hillsborough, Foster City, Redwood City, and San Mateo.

Serving Belmont, Burlingame, Foster City, Redwood City, Hillsborough and all San Mateo County