Estate planning is an important step in securing the future of your loved ones and descendants. When an individual dies without a will, their property is distributed according to the state’s complex intestate laws.
When life circumstances require changing your will, you must follow certain state laws to ensure the new will is valid and enforceable. An experienced wills attorney could guide you through the process of will revocation in Orange County.
Was the Initial Will Legally Enforceable?
The first step to revoke a will in Orange County is to determine whether the initial will is legally enforceable. The state’s probate laws list the requirements for a valid and enforceable will. The individual who plans to divest assets at death, known as the testator, should record the will in writing according to California Probate Code § 6110. State laws also require that the individual creating the will is at least 18 years old and has a sound mind per CA Prob. Code § 6100.
State law requires that the testator is mentally competent when the will is created or modified per CA Prob. Code. § 6100.5. When an individual suffers from mental health disorders characterized by delusions or hallucinations, a court could rule they do not have the mental competence to understand the impact of the will. Many will disputes are centered on the issue of mental competency for older adults.
The testator must sign the will in the presence of two witnesses who are considered competent adults, according to CA Prob. Code § 6110. Potential beneficiaries can serve as witnesses under state law, but this could hurt them in a potential will contest. CA Prob. Code § 6112 states that a beneficiary serving as a witness creates a presumption that the divestiture resulted from undue influence or fraud.
Creating a New Will Does Not Automatically Revoke an Earlier Will
Another common probate dispute happens when the testator creates a second will without clearly stating how it impacts the first will. Under CA Prob. Code § 6120, a will is legally revoked in Orange County when the testator drafts a new will that explicitly revokes the earlier document in full or in part.
Revocation is also valid under state law when the testator destroys the document with the intent to revoke the will. When duplicates of the will exist, the testator only needs to destroy one copy for a valid revocation under CA Prob. Code § 6121.
When the testator fails to revoke the earlier will explicitly in the new document, a court will have to examine the documents for significant inconsistencies to determine whether the earlier was fully or partially revoked. A lawyer could ensure a testator follows all the steps to revoke a will and check for inconsistencies.
The Will Is Not Legally Valid When Created or Modified By Force
When a testator passes, the appointed executor of their estate will typically file a petition of probate, and all beneficiaries are notified. Potential beneficiaries and persons of interest can contest the will in probate.
Disputes in probate court often center around accusations that someone took advantage of the decedent’s old age or mental state. CA Prob, Code § 6104 stipulates that a will is not valid if it was created by forceful means, including fraud, duress, menace, or undue influence, which an attorney could investigate.
This is why it is essential to consider who is serving as a witness to the will’s execution. Ideally, the witnesses are disinterested parties who have nothing to gain from the will. When the witness stands to gain property through the will, the burden of proof shifts to them to show there was no illegal influence under CA Prob. Code § 6112.
Contact an Attorney in Orange County for Help With Will Revocation
You should contact a lawyer immediately if you need assistance with will revocation in Orange County. Failing to adhere to state laws could result in long and costly probate litigation for your loved ones.
An unenforceable will can undo years of careful estate planning and subject your assets to distribution in accordance with state intestate laws. Call Amity Law Group today to schedule a private consultation.
