Robert Chang, Esq
Estate planning can be problematic if there are people in your family who you think may try to challenge your wishes. The way to do this is what is called a will contest. Usually, these will be people in your will, or your children or relatives.
A will contest requires a specific legal reason, not just because it was unfair or mean-spirited. The most common ways are challenging execution, capacity, and alleging fraud or coercion.
Execution is the process of making the will. There are certain requirements such as having witnesses present, and signing it in front of witnesses who do not have a stake in the will itself.
Capacity is basically your mental well being. This is very common because memory problems are common as people get older – however, this does not mean that you don’t have the ability to make a decision about how you want your property to be divided. That being said, it can be something the family black sheep and his lawyer can use to invalidate your entire will.
Finally, the last two, fraud and undue influence, generally occur and are alleged together. Some situation occurs where someone in a position of authority (perhaps a child with a power of attorney and therefore control of the finances) forces the parent to sign something with a threat. Or maybe the testator signs a document not knowing its a will.
An alternative to avoiding these problems is to draft a living trust to supplement or avoid having a will. All the assets go in the trust. You have full control of your property until you pass away. They are not recorded with the county, and no one has to know about it. Talking to a lawyer, or someone experienced in estate planning can save your family a lot of grief and money later.
Contact DP LEGAL SOLUTIONS for a comprehensive Living Trust Package or a Will Package to safeguard your family. Call us at 510.346.5686 to make an appointment.