When you are engaged in your estate planning efforts, you should sit back and evaluate the people who would have an interest in your estate. If you keep your head in the sand and assume that everything will fall into place after you are gone, difficulties can arise when everything is being sorted out.
Many people assume that a last will is the right estate planning document if you are not a very wealthy person. When you create a will, you name an executor. This is the person who handles the business of the estate after you are gone.
You may assume that you can provide the executor with the appropriate financial access, and the executor can distribute your resources to the people that you name in the will without supervision. In reality, this is not the case. There is a legal process called probate that enters the picture. Under the laws of the state of California, the executor would be required to admit the will to probate, and the court would get involved.
There is a proving of a will during the probate process. The court examines the will to determine its validity.
The person who executes a last will is called the testator. In California, in order for a will to be valid, the testator must sign the will in front of two witnesses. The witnesses must also sign the document. During probate, the court contacts the witnesses to make sure that they were in fact present.
Contesting a Will
If anyone wanted to contest the validity of a last will, they could do so during the probate process. There are a number of different grounds that could potentially be acceptable.
A last will must be signed while the testator is fully competent mentally. If an interested party felt as though the testator signed the will when he or she was not of sound mind, and the court agreed, the will could be deemed invalid.
Coercion is another acceptable ground. The testator must be fully willing to sign the last will. Intimidation is a cousin of coercion, and this is another ground that can be used to challenge a last will.
There is also the matter of fraud. If someone thinks that a will was fraudulently executed, this individual could present an argument during the probate process.
Improper execution can also enter the picture. As we stated previously, the will must be signed in front of two adult witnesses who are fully competent, and everything must be done in accordance with the laws of the state of California.
Preventing Successful Challenges
When you think about will challenges, you may envision people who are disgruntled who simply cannot handle the decisions that were made by the family member who passed away. Without question, this type of situation does arise, but there are challenges that are completely legitimate.
However, you may be aware of the fact that there are people close to you who would not be happy with the estate planning decisions that you made. You may be concerned about a challenge being presented after you are gone.
This is something that you can discuss with an estate planning attorney. First off, even if you use a will, if you execute it with the assistance of a licensed estate planning attorney, it would be difficult for anyone to contend that it was improperly or fraudulently executed. Your attorney is certainly not going to coerce or intimidate you, so this would limit the possibility of a successful challenge.
Plus, you don’t necessarily have to use a will as your asset transfer vehicle. The probate process opens the window wide open for anyone who wants to challenge an estate, but there are ways that you can get assets into the hands of your loved ones outside of probate.
A living trust is a possibility that is useful for a wide range of people. Assets in a living trust would be distributed to the heirs outside of probate. There is no built-in mechanism that allows for challenges to the terms of a living trust.
It is possible to file a lawsuit to challenge a trust, but you can provide a disincentive if you include a no-contest clause.This clause would completely disinherit a beneficiary who chooses to challenge the terms of the trust.
A lawsuit could still be filed if the beneficiary was willing to take the risk, but there would be a profound disincentive.
To Schedule a Free Consultation
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