Failing to Update Your Will Can Result in Litigation Later
- March 2, 2020 - Trust Litigation,
Wills are often made months, years, or even decades before they are ever needed. This means that many are outdated by the time they are submitted to the probate court. Sometimes, this confusion can lead to bitter litigation that depletes the estate and impairs the property rights of all potential heirs. You can avoid this with effective planning and regular updates to estate planning documents.
The experienced probate litigation attorneys at Hackard Law focus on estate law. Santa Clara residents and their heirs can use their skills to protect their estates and rights.
Why Wills Can Easily Become Outdated
Many circumstances can make a will outdated, and render it partially—or wholly—invalid at the time of the death of the person who made it (the testator). Even a valid will may not accurately reflect the current wishes of the testator at the time of death, due to circumstances that changed since the time of the will’s creation. Life events such as births, deaths, marriages, and divorces all change the status of people who are legally entitled to inherit under default rules of law. An outdated will can leave property to people whom the testator does not wish to inherit or exclude persons who the testator wishes to inherit.
A common example of such a life event is divorce. After a divorce, many testators will not wish to leave property to their former spouses. But unless a will is updated, the will may still entitle that person to inherit—the divorce will not automatically disinherit the former spouse. A testator must update all estate planning documents to prevent the former spouse from inheriting by default. You can do this by revoking the old will entirely, or by issuing a codicil (a type of amendment) to the former will.
A will can also become outdated if it does not properly disinherit a person. Spouses and children are protected by provisions of the California Probate Code. As a result, if a will does not provide an inheritance to them, California law may still entitle them to an “elective share” equivalent to the portion of the estate they would have received had the testator died without a will. A testator who does not wish these default rules of law to apply must properly disinherit the spouse or child in the express language of the will. This requires a statement that the testator has intentionally chosen not to make provisions for the specified people, and does not wish them to inherit. If earlier versions of a will provide for an inheritance to that person, or simply do not mention them, the person may still access an elective share of the estate.
Codicils can also leave a will outdated and complicate its administration. A codicil is an amendment to an earlier will. A codicil can revoke the earlier will entirely, delete certain provisions, add provisions, or simply restate the will in its entirety. Because a codicil can dramatically alter the provisions of an earlier will, it is critical that an experienced attorney properly execute the codicil and keep it with all copies of the will. Make sure family members and friends are aware of the codicil’s existence. This can prevent the admission of the earlier will to probate without the codicil.
How Families Are Hurt By Outdated Wills
Outdated wills have real and devastating effects on families. This is what happened upon the untimely death of actor Heath Ledger. According to Fox News, Ledger signed a will in 2003 that named his parents and three sisters as his beneficiaries. In 2005, he had a daughter with actress Michelle Williams. He and Williams never married. He was also never legally adjudicated as the father of Williams’s daughter (though he was listed on the birth certificate, and openly acknowledged the child as his).
When Ledger died in 2008, the original 2003 will was in effect. Because he had never married Williams and never had a paternity judgment issued against him, neither mother nor child were entitled to any share of Ledger’s significant estate. The case seemed headed for nasty probate litigation. Yet Ledger’s father told reporters that there would be “no claim” from Williams and that the family had “gifted everything” to Ledger’s daughter in accordance with that they believed Ledger’s wishes would have been. This led to a quiet resolution of a case that could have made international headlines.
How an Attorney Can Help Protect Potential Heirs
The Heath Ledger case demonstrates the importance of updating a will upon critical life events. Though the family was able to negotiate a peaceful resolution without litigation, many families are not so lucky. When this happens, an experienced probate litigation attorney can help protect your property rights.
Again, using the Heath Ledger case as an example, many legal tools could have substantiated his daughter’s legal claim to the actor’s estate. Even without a DNA test or court order of paternity before his death, a probate court can determine parentage posthumously. This can be done with evidence of a person’s voluntary acknowledgment of a child.
In Ledger’s case, he had signed the birth certificate and was involved in the child’s life as her father for nearly two years before he died. Moreover, this paternal role was well documented by magazines, newspapers, websites, and other media outlets across the world. Williams could have used this and other evidence, if necessary, to prove that Ledger was, indeed, father to her child.
If the probate court determined that Ledger did have a child, the law would have entitled the child to an elective share of the estate, equivalent to what she would have inherited if Ledger had died with no will in place.
Experienced Probate Litigators Can Help Protect Your Loved Ones
With extensive experience in probate litigation, our attorneys know how to protect estate planning documents from legal challenges and successfully launch or defend against court challenges.
Call us today to schedule your free consultation with one of the estate attorneys at Hackard Law. You can reach our office at (916) 313-3030 from Santa Clara and (213) 357-5200 from Los Angeles.
Attorney Michael Hackard
Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]
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