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Is Your Will Improperly Executed | Resolving Properly Rights

Resolve Property Rights When Will Not Properly Executed.jpgHelping Heirs Resolve Property Rights When Wills Are Improperly Executed

California law imposes procedural requirements upon wills to ensure their validity. Certain survivors can challenge incorrectly signed, witnessed, or otherwise executed wills in the probate court upon the death of the person who attempted to make the will. Some procedural defects will invalidate a will altogether. Others will merely invalidate certain provisions, or codicils, added to the initial will.

The probate litigation attorneys at Hackard Law help family members determine their legal rights in a procedurally defective will. Our Lancaster litigators will fight hard to protect your property rights.

The Statutory Requirements for a Valid Will in California

The California Probate Code imposes certain procedural requirements to ensure the validity of wills and other estate planning documents. Section 6110 requires the person who made the will (the testator) to sign it. A testator who is unable to sign but wishes to execute the will can have another person sign it in the testator's presence and at the testator's direction. A conservator appointed by the court to manage the testator's financial affairs can also sign the will.

Section 6110 also requires two parties who were present together when the will was signed (or when the testator acknowledged the signature or the will) to witness

the will. They must understand that the instrument is a will, and they cannot benefit financially from the will (except in limited circumstances).

If a witness does benefit from the will, certain survivors can challenge the will in the probate court when it is executed. A witness with financial interests in the will can cause the invalidation of portions of the will--especially those that make financial provisions for that witness. In certain circumstances, the financial interest of its witness may invalidate an entire will. Section 6112 of the Probate Code sets forth legal rules that apply to interested witnesses.

California law allows for the creation of a holographic will, which is written in a testator's own handwriting. It is therefore presumed valid, even if it does not have witnesses or meet other legal requirements. Section 6111 of the Probate Code requires holographic wills to contain a signature and all material provisions in the testator's handwriting.

Many cases have explored the validity of wills that do not meet these requirements or meet only some of the requirements. Executors can administer some wills in whole or in part despite such defects. For example, Bloomberg reports that both Michigan and New Jersey, which have adopted the Uniform Probate Code, have admitted unsigned wills to probate. The Uniform Probate Code allows courts to excuse "harmless errors" in formal execution requirements. This ensures that procedural rules do not overcome a testator's clear intent. The ultimate goal of any probate court is to honor the known wishes of a testator.

The Pain That Family Members Can Suffer in the Absence of a Will

When a person dies without a will or has an invalid will, family members can suffer greatly as a result. The Telegraph spoke with a British woman who was left bereft after the death of her partner of 25 years. They had a daughter together, and the man had executed a will that was supposed to provide for the two women upon his death. When he died, they discovered that he never signed the will. Instead, his four children by his first wife were entitled to inherit all of his assets under English intestacy laws. (States in America also have laws that provide for succession when a person dies without a will, or intestate.)

The unsigned will led to a lengthy court battle between the woman, her daughter, and the four children of his first marriage. She rejected an initial settlement offer to split the estate evenly six ways. Eventually, the parties negotiated an agreement by which the four children would purchase a house in their name, but allow the woman to live in it for the rest of her life. It would then revert to the children upon her death. She is still left to pay for repairs, maintenance, and upkeep of this house, without owning the equity in these investments. Choosing to remarry will also leave her homeless. "The consequences of Carl not validating his will have been horrific," she says in summary of the situation.

An Attorney Can Help Prevent Property Disputes in a Will--and Protect Heirs' Property Rights When They Arise

American intestacy laws operate similarly to those of England. In the United States, a person has no claim to a partner's estate if they never formally married. Nonetheless, an experienced probate litigation attorney could make arguments in support of such a person's claim. The attorney could argue to a probate court that the lack of a signature was a harmless error (though this would likely only succeed in a state that adopted the Uniform Probate Code). The attorney might introduce evidence that the testator intended to sign the will.

Finally, surviving children may establish claims to the estate. American law creates a presumption of paternity when the parents married. If, however, the parents never married, and a child could still prove paternity, the law may entitle the child to an elective share of the estate. This is created by "omitted child" statutes, such as Section 21620 of the California Probate Code.

The Right Representation for Effective Probate Litigation

The estate administration process can affect the legal rights of friends, family members, other heirs, and even the person who made the will. An experienced Lancaster estate attorney can help people protect their legal rights throughout the probate process. Call today to schedule your free consultation with one of the experienced probate litigators at Hackard Law. Call us at (916) 313-3030 or (213) 357-5200, or write us online here today to put our skill and experience to work for you.

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