Saturday, February 16, 2013

Orange County Probate Attorney Believes a Contested Probate can be Avoided


When a person dies leaving a Will, it does not necessarily mean that his final wishes will be fulfilled.  His estate will undergo probate, a legal process wherein the court oversees the distribution of the testator’s estate to his beneficiaries.  At the  initial stage of the probate,  the testator’s will may be contested.  A will can be contested if it can be argued that a part or the entire document is invalid.  Thus, when executing a Will, it is best that one consults an expert probate lawyer from Orange County who is well-versed with California Probate Code to ensure that your Will is valid.

An individual may contest a will because he believes that the document is invalid as it does not fully meet  California  statutes for validity. A will may be declared invalid if it can be proven that the testator did not have the mental capacity to make the will or that he did it under duress, intimidation or deceit by a third party.  Other grounds may be that the will was forged or that it wasn’t executed by the testator at all.  Contesting one’s share of the estate in the will, however, is not a ground for invalidation of a will.

                Anyone may contest a will as long as he can prove that his interests will be affected by the outcome of a will contest. In other words, that person stands to make tangible gains or losses if the will is found to be invalid. Thus, most people who file contests of wills are next of kin whose name may have been omitted from the will. On the other hand, the executor of the will or the personal representative is tasked with defending the will’s validity.  If you are a beneficiary or executor, you  should seek the assistance of a probate attorney who can study the Will being contested.  

While the will is being contested, the executor may settle the obligations of the estate, make an accounting of the estate and oversee the resources of the estate.  However, he cannot yet distribute the assets to the beneficiaries because the beneficiaries may change after the will contest is settled.

                There are three possible outcomes to a Will contest:  the will is deemed valid; part of the will is deemed invalid’; or the entire will is adjudged to be invalid.  If the entire Will is declared valid, then the executor is free to distribute the assets of the testator according to his instructions.  If part or all of the Will is deemed invalid, then the court will instruct the executor to disregard the invalid portion of the Will as if it did not exist. If the entire will is found to be invalid, then the intestacy laws of the state will be followed.

                If you are planning to execute a Will, better to consult an experienced probate lawyer from Orange County who can ensure that your will meets California laws of validity.