Making a will is an important step to making sure that your assets are distributed according to your wishes after your death. However, it is equally important that your will can stand up to potential challenges during probate, the legal process that validates your will and oversees the distribution of your estate. 

Writing a will that can withstand possible challenges during probate begins with strictly adhering to the legal requirements for creating a valid will. Under California law, the following requirements apply:

  1. Age and mental capacity — The person creating the will, known as the testator, must be at least 18 years old and of sound mind. This means they must understand the nature of making a will, the extent of their property, and the identity of the beneficiaries.

  2. Written document — The will must be in writing. While oral wills (nuncupative wills) are recognized in some states, California does not accept them.

  3. Signature — The will must be signed by the testator or by another person in the testator’s presence and at their direction if they are physically unable to sign. If another person signs on behalf of the testator, the will must indicate that it was signed at the testator’s direction.

  4. Witnesses — The will must be signed by at least two competent witnesses who are present at the same time, understand that the document is the testator’s will, and see the testator sign it or acknowledge the signature.

Failure to comply with these requirements can lead to the will being contested on the grounds of invalidity.

An experienced California wills and trusts lawyer understands the types of contests that can be raised and who might raise them. They can help ensure that your will is drafted in a way that minimizes the risk of successful challenges and that your estate is distributed according to your wishes.

To further safeguard your will from challenges, you might consider including a no-contest clause. This clause essentially states that if a beneficiary contests the will and loses, they will forfeit their inheritance. The idea is to discourage beneficiaries from bringing frivolous or groundless challenges.

However, California law places limits on the enforceability of no-contest clauses. According to Probate Code Section 21311, a no-contest clause is enforceable only in three specific situations:

  1. Direct contests without probable cause — If the challenger lacks a reasonable belief that the contest has merit, the no-contest clause can cause the disinheritance of the challenger.

  2. Challenges to property transfers — The no-contest clause can be enforced if a beneficiary challenges a property transfer on the grounds that it was not transferred according to the will or trust terms.

  3. Fiduciary appointments — If a beneficiary contests the appointment or removal of a fiduciary (like an executor or trustee) without probable cause, the no-contest clause may be enforced.

While a no-contest clause can be a powerful deterrent, it is not foolproof. A qualified attorney can help draft the clause and advise on its potential effectiveness in your specific situation.

Favaro, Lavezzo, Gill, Caretti & Heppell, PC, with offices in Vallejo and Fairfield-Suisun, provides reliable advice and skilled legal counsel for wills, trusts, and other estate planning matters. We represent clients throughout Solano, Contra Costa, and Napa counties in Northern California. Call our law firm at 707-674-6057 or contact us online to set up a consultation today.