What’s the first thing I should do if my estate plan is contested

Navigating a contested estate plan can be incredibly stressful, but taking swift and informed action is paramount to protecting your wishes and ensuring a smooth process for your loved ones. The very first thing you should do, if you foresee or are facing a challenge to your estate plan, is to immediately consult with an experienced estate planning attorney specializing in probate litigation. This isn’t a time for DIY solutions; a legal professional can assess the situation, explain your rights, and guide you through the complexities of the legal process.

How Much Does Contesting an Estate Plan Typically Cost?

One of the first questions people have when facing a contest is the financial implication. Legal fees can vary widely, depending on the complexity of the case and the attorney’s rates. Typically, contesting or defending an estate plan can range from $5,000 to $50,000 or more, and even exceed that in extremely complex or protracted litigation. A significant portion of this cost is related to discovery – gathering evidence like financial records, medical reports, and witness testimonies. It’s also vital to understand that a losing party may be responsible for the opposing side’s legal fees, so careful consideration of the merits of your case is crucial. Approximately 30-40% of estates are subject to some form of dispute, highlighting the importance of being prepared.

What Types of Challenges Are Most Common?

Several common challenges can arise when an estate plan is contested. Lack of testamentary capacity – meaning the person didn’t have the mental capacity to understand the implications of their decisions when creating the plan – is a frequent claim. Undue influence, where someone pressured the person into making changes they wouldn’t have otherwise made, is another. Claims of fraud, where someone intentionally misled the person, are also relatively common. In California, challenges to wills based on improper execution (not signed or witnessed correctly) are also seen. A formal will requires signatures and witnesses at the same time, or it’s deemed invalid. However, a holographic will, written entirely in the testator’s handwriting, doesn’t require witnesses. It’s estimated that around 15% of estate plans face some form of legal challenge, demonstrating the necessity for proactive estate planning and regular review.

What if a Family Member is Acting Suspiciously?

I once worked with a woman named Eleanor, who had a strong feeling her nephew, David, was subtly trying to manipulate her into changing her will. She hadn’t changed her estate plan in years, and David, having recently fallen on hard times, was increasingly vocal about his financial struggles and the “unfairness” of her distributing her assets equally among her three grandchildren. She confided in me, and we immediately reviewed her plan and documented her concerns. We were able to reinforce her original intentions and create a detailed record of her mental state and understanding of the plan. This documentation proved invaluable when David eventually filed a challenge after her passing, claiming undue influence. It’s a powerful reminder that vigilance and proactive documentation can protect your wishes.

How Can I Prevent a Contest in the First Place?

Preventing a contest is always preferable to fighting one. One critical step is ensuring your estate plan is thoroughly documented and reflects your wishes clearly. A “no-contest” clause, also known as an “in terrorem” clause, can deter frivolous challenges, though it’s narrowly enforced in California. It only applies if a beneficiary files a direct contest without “probable cause”. Beyond that, maintaining open communication with your family and explaining your decisions can minimize misunderstandings. I recall a man, Robert, who spent hours discussing his estate plan with his children, explaining his reasoning behind each distribution. While his children didn’t necessarily agree with every aspect, they understood his thought process, and no contest arose after his passing. In California, all assets acquired during a marriage are considered community property, owned 50/50 by each spouse, and the surviving spouse receives the full benefit of this property. Additionally, the “double step-up” in basis is a significant tax benefit, as it allows the surviving spouse to inherit assets with a new cost basis equal to their fair market value on the date of death.

If you are facing a contested estate plan, or simply want to ensure your plan is bulletproof, don’t hesitate to contact an experienced attorney. Steven F. Bliss ESQ. can provide expert guidance and help you protect your wishes. Remember that formal probate is required for estates over $184,500 in California, and the statutory fees for executors and attorneys can be substantial – often a percentage of the estate’s value. By addressing potential challenges proactively, you can safeguard your legacy and provide peace of mind for your loved ones.

Call Steven F. Bliss ESQ. at (951) 582-3800 for a consultation.