Living Will Lawyer
Jul 25 2018 0

The Basics of California Probate Litigation

The death of a family member can be a traumatic event for the loved ones who are left behind.  When an estate plan is created before death, it helps to divide assets among family members and those close to the deceased family member.  In some cases, however, disputes arise over the distribution of assets provided in a will or trust. This leads to probate litigation challenging the estate planning documents.  

Probate litigation is emotionally-charged, often pitting close family members against one another.  These cases can destroy family bonds and create the type of confusion and chaos that the deceased person hoped to avoid when they executed a will or trust agreement.  The specific grounds for challenging a will or trust depends on the facts of the case.

California Will Contests

Living Will LawyerIn California, a person seeking to challenge a will must file an objection to the will with the Court. This person is known as a contestant. Once the contestant files an objection, the party seeking to uphold the will has 30 days to file a response.  The responding party is known as a proponent.

Once the contest proceeds to a hearing, the burden of challenging the will lies with the contestant.  The contestant must prove that the will was improperly executed on one of several grounds, including:

  • Undue Influence
  • Lack of Testamentary Capacity
  • Fraud
  • Duress
  • Mistake

After hearing evidence, the Court must then decide whether the uphold the will and admit it to probate for administration or rejecting it based on the challenge of the contestants.  The Court may also admit parts of the will to probate and reject other components depending on the evidence at trial.

No Contest Clauses in California

In an attempt to stop estate litigation before it ever begins, many people include what is known as a no contest clause in their will.  A no contest clause is a clause in a will which provides a penalty if the will is challenged in court and the challenger ultimately loses.  In such cases, a no-contest clause may provide for disinheritance of the challenger.

In 2010, the California legislature attempted to tackle no contest clauses in Section 21311 of the Probate Code. This law limits the effectiveness of such clauses by providing that a no-contest clause will only be enforced if there is no probable cause for the filing of a will contest.  Probable cause is defined in the code as a “reasonable likelihood” that the will would be overturned after further investigation into the case. If the contestant can meet the reasonable likelihood standard, then the Probate Court will refuse to enforce the no-contest clause, and the contestant cannot be disinherited under the will.

California Probate Litigation Attorneys

Trust and estate litigation should never be handled alone or with an inexperienced attorney.  The law in this area is too complex, and a large number of assets are at stake. Whether you are challenging or defending an estate planning document, you need an experienced California probate litigation attorney to fight for you.

At the Leiva Law Firm, our team of attorneys and staff will work tirelessly to get the results you deserve. To discuss your case, call us today at (818) 703-1777.

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