Contested Wills

Have you been treated unfairly or left out of a Will? You can do something about it!

Unfortunately, the death of a family member is one of the most traumatic events in the course of a person’s life. As a direct result, people become very emotional and sometimes, irrational. In most cases, families have grown together over a course of years, to the point where fighting over a family estate is unlikely. However, there will always be individuals who will try to obtain an advantage over their relatives when an estate passes.

There are numerous reasons for disputes. Frequently, it is simple as greed. However, it is often driven by emotions and sibling rivalries, which date back years and sometimes decades. If these disputes cannot be resolved informally, it is a good idea to have an attorney come in and make sure that all of the work associated with transferring a decedent’s assets is done according to the laws of the state of California. If this does not resolve the dispute, then there is always the option of going to Court and requesting the Court to enforce the rights of the individuals involved.

In the case of both Wills and Trusts, it is generally an heir who is not in control of the property who will initiate legal proceeding. In other words, the executor of the Will or the Trustee of the Trust already has the authority to make decisions, right or wrong. If the decisions are wrong, it is up to the beneficiaries of the trust or the heirs of the Estate to protect their interests by hiring an attorney.

One problem that arises far too often involves Wills and Trusts executed late in life and leaving an Estate to a caregiver or a single person, while excluding the Decedent’s spouse or children. If a parent does not get along with a child, it is certainly possible to disinherit that child. However, if the parent did not understand the nature of the Will or Trust, or they were subject to undue influence, then the Will or Trust can and should be challenged.

There are several issues a client needs to consider in contesting a Will or Trust. In the case of a Will, we need to establish whether the Will is valid, whether it was revoked and determine if the Will is current.

Normally a spouse has an automatic right to receive one-half of the community property in the Estate or Trust, even if the property was held in the name of the deceased spouse. If a Will or Trust attempts to take away a spouse’s share that portion of the Will or Trust may be invalid. Similarly, if a spouse or child was not identified in a Will or Trust, they may have rights in the Estate as an omitted heir.

In many instances, both Trusts and Wills contain a No-Contest clause. This has caused numerous people to fear filing a lawsuit to protect their interests.

However, the California State Legislature has modified the enforcement provisions for No-Contest clauses. The modifications generally make it much more difficult to enforce a No-Contest clause when a beneficiary brings a claim in good faith.

This is not a blanket protection and you should consult an attorney and obtain a legal opinion on the issue before filing a lawsuit or taking any action challenging the Probate of an Estate or the Trustee of a Trust.

Whether a Trustee or beneficiary, if you are dealing with a relative who has treated you unfairly or is making unreasonable claims, we can assist you in determining your legal rights and preparing a plan of action to protect your interests in a Trust or Estate. If necessary, we will file a Petition with the Superior Court to protect you.