It's hard enough when elderly parents die without adding will contestation by siblings. The best way to avoid a conflict is to have a concise will that specifically details the deceased's final wishes. An estate planning attorney in Los Angeles manages the process, from drawing up the will to carrying out the instructions.
All the estate planning in the world won't prevent determined adult siblings from disputing a will. This is why it's important to know how a will can be contested and under what conditions.
How to Contest a Will and When You Should
Contesting a will is a long, expensive process and there is very little chance of success. Studies show that only 0.5% to 3% of contested wills favor the plaintiff. You must be very confident in your claim before challenging a will's legitimacy.
The first thing to do is decide if you're going to hire an estate planning lawyer in Los Angeles or if you're going to DIY. Contesting a will is tricky with laws and jargon that an attorney easily slices through. Your attorney ensures you have the right to contest the will.
You can only contest a will if you meet at least one of these criteria:
- You were a recipient of a previous will.
- You are a recipient of the current will.
- You are a recipient of a will made after the current will.
- If not for will and intestacy law, you would be a recipient.
When Can You Challenge a Will?
There are four circumstances under which you can contest a will.
1. Cognitive Impairment
This is the 'sound mind' or mental capacity element of a will. Testators must know their assets and the assets' value. They know who their natural heirs are and how their assets are divided. You can dispute the will if you believe that at the time of signing, at least one of these criteria was not met.
2. Fraud, Duress, or Forgery
You must be able to prove that the testator was in some way forced or deceived to create the will. You also need proof if you believe fraud or forgery was involved.
Your claim has good grounds if the r suddenly changes their will, especially if the change was out of character and at odds with the original estate plan.
3. More than One Will
In some instances, there could be two or more wills that contain different wishes. It can be difficult to prove which estate planning documents are legally binding. Probate litigation may be the only way to solve the issue.
4. State Laws
States have different laws regarding estate planning, including what makes a will valid and what negates its contents. For example, you can't decide that you like the Californian probate process and then arrange for the reading to be in the same state.
This is because the state laws in which the deceased lived apply. If he made the will in California but lived in Maine, Maine laws would apply.
How Do You Contest a Will?
If the requirements of all of the above are met, you can contest the will. Note that there is a statute of limitations on disputing a will, and the average time is two years.
Start by filing a petition in the state probate court where the will is being probated. If the will is in Maine, you can't file a petition in California.
The forms required to file a petition vary by state. You must ensure that you have the legal documents you need to submit a challenge.
Your Los Angeles estate planning lawyer acts as your personal representative and must be an accomplished practitioner in all aspects of estate planning, including family inheritance disputes.
What Happens When a Will is Contested?
The first thing your Los Angeles estate planning lawyer will do is suggest mediation so you and your sibling can resolve the issue amicably. This is the best way to settle sibling disagreements over the legitimacy of a will.
If mediation fails there is no choice but to take the probate dispute to civil court. A presiding judge hears the evidence from both parties and makes a ruling that either upholds or dismisses the case.
How to Ensure Your Estate and Loved Ones are Protected?
Estate planning with a specialist lawyer is the best way to ensure your estate is distributed in a way that protects the interests of your loved ones.
Here are five steps you can take to keep your estate protected for your family.
- Create a will - It sounds obvious but only around 30% of Americans have a will. It doesn't matter how small you think your estate is, a will is necessary.
- Choose a power of attorney - This is someone who will act on your behalf if you are incapacitated and ensure the terms of your will are carried out according to your wishes. You can designate someone else to be your medical power of attorney to make medical decisions that uphold your wishes.
- Get life insurance - Life insurance is necessary if you have financial dependents who will continue to need support after your death. It's also a way to give your loved ones a chance to reach a financial goal, like buying a car.
- Update beneficiaries - Life circumstances change and you must update your will accordingly. For example, if you get divorced, you need to ensure your insurance policies and retirement investments no longer name them your beneficiary.
- Keep it in a safe place - The safest place to store your original will is with your attorney. Make an official digital version and entrust it to your estate planning lawyer in Los Angeles in case of an unforeseen disaster.
Speak with an Estate Planning Attorney in Los Angeles
Estate planning is crucial if you want to secure your estate and ensure your assets are managed according to your wishes.
One of the reasons you need to consult an estate planning attorney in Los Angeles, CA, is to prevent possible disputes between family members, especially disputes among siblings.
Our lawyer, Thomas L. McKenziespecializes in estate planning. You can be sure that your last will and testament are in safe hands. To book a free consultation to discuss an estate plan that considers your family dynamic, complete our onsite form or call us at 562-594-4200 at McKenzie Legal & Financial today!
