Friday, July 29, 2011

Rules for Valid Wills Create Traps for the Unwary

California's statute of wills contains several requirements that must be followed in order for a will to be valid. An invalid will could cause the estate to be probated according to the laws of intestate succession, where the wishes of the will-maker (the testator) are completely ignored, and the estate is distributed according to preset statutory rules.

Requirements for a Valid Will

In order to be competent to make a will, a testator must be 18 years old and of sound mind, possessing the necessary testamentary capacity to make a will. This means that the person must understand what it means to make a will, must appreciate the extent of his or her estate, and must know the family members and other persons whose interests will be affected by the making of the will.

The will must be in writing (i.e., typed or printed) and either signed by the testator or by another at the testator's direction. There must be two witnesses together at the same time to also sign the will, attesting that they witnessed the testator's signature or the testator's acknowledgement that the signature on the will belongs to him or her.

Numerous Ways to Challenge a Will

A will can be challenged (contested) in any number of ways. One may allege that any of the procedures outlined above were not followed properly, or that the testator lacked the testamentary capacity to make a will. Even a will that meets all the above requirements is invalid if it can be shown that the testator signed the will under duress or by virtue of fraud or undue influence. When more than one will is produced, difficulties arise as to which will should be accepted and admitted into probate. A will contest can cause drawn-out litigation where legal battles are fought over complicated factual and legal issues.

Always Seek Professional Assistance

As a lawyer who practices both estate planning and probate litigation, Vin Casiano knows that the best defense is a good offense, and the best way to keep a will safe from contests is to make sure that it is prepared correctly in the first place. Always seek the assistance of an experienced estate planning attorney to make sure your will is prepared with the care and skill required to be valid under California law and to withstand any legal challenges. In San Diego and Southern California, contact the Casiano Law Firm for sound legal advice and high-quality professional assistance.