Probate Litigation Attorney

Probate is the court-supervised process for validating a will and distributing the estate assets to the named beneficiaries. While this seems straightforward, disputes during probate proceedings often lead to litigation. If you have concerns about the validity of a will or believe that your inheritance is at risk, you need an experienced San Jose probate litigation attorney at your side.

At BoyesLegal, APC, we have extensive experience handling probate litigation in California and Arizona. Knowing that a dispute between beneficiaries can become an emotional burden and jeopardize estate assets, we often recommend seeking negotiated resolutions, but we are always ready to litigate in probate court. Contact our office today to schedule a consultation.  

What is probate litigation?

Probate litigation arises when there are disputes about the contents of a will, questions about the decedent’s intentions for the distribution of his or her assets, conflicts about who should be considered a legal heir to the estate, or claims about the executor’s handling of the estate. 

When these questions emerge during a probate proceeding, the validity of the will can be challenged in a legal proceeding referred to as a will contest. The best way to protect your rights is to work with a probate litigation attorney who understands the rules and procedures of the probate courts in your state.

What are the grounds for a will contest in San Jose?

The first thing to know is that a person bringing a will contest must have a legitimate interest in the estate – typically an heir, beneficiary, or another party who stands to inherit. After a petition to contest a will has been filed, other parties (e.g. potential heirs, creditors to the estate) are notified and also permitted to file petitions. 

The petition must specify grounds for challenging the will. Given that a will is presumed to be valid, there is a high burden of proof. In any event, the grounds for a will contest include: 

  • Improper execution – Under California and Arizona law, a will must be in writing, properly executed, and witnessed by two people who attest that they saw the testator (the person making the will) sign the will.
  • Lack of testamentary capacity – A will may be invalidated if the testator lacked the mental capacity to know what property he or she owned, to understand the purpose of the will, and the consequences of his or her decisions. Proving mental incapacity requires evidence that the testator suffered dementia or was under the influence of certain medications at the time he or she signed the will. 
  • Undue influence – A will may be invalidated if the testator created or changed the will under duress or was coerced into executing the will by someone who may have undue influence such as a beneficiary or caregiver.
  • Fraud – A will may be fraudulent if the testator is presented with a document for his or her signature and told it was a power of attorney.
  • Fiduciary abuse – An executor is considered a fiduciary and must act in the best interests of the beneficiaries at all times. An executor who misappropriates assets or fails to properly account for the status of the estate can be held liable for fiduciary abuse. 

Ultimately, contesting a will may be the only way to protect your inheritance rights, which makes working with a knowledgeable probate litigation attorney essential.

How BoyesLegal Can Help San Jose Residents

Our firm has extensive experience handling will contests. Once you become our client, we will:

  • Obtain and analyze documents from the estate planning attorney who prepared the will
  • Review the testator’s medical records to determine if there is evidence of mental incapacity 
  • Determine whether or not to proceed with a challenge

You should know that a will often includes a  “no contest “ clause which can prevent you from receiving your inheritance. If you are able to demonstrate probable cause to contest the will, however, the no-contest clause will likely not be enforced. Above all, we will work to protect your inheritance through settlement negotiations or probate litigation. 

How Estate Planners Can Avoid Probate Litigation

While a will contest has a high burden of proof, there are steps you can take to avoid probate litigation, including:

  • Don’t Delay – One of the most common estate planning mistakes people make is to wait to create a will until their physical or mental health is declining. A person who lacks mental capacity cannot prepare a will, and lack of testamentary capacity is a leading reason for will contests in California and Arizona.
  • Avoid Undue Influence – If you are planning to create a will, it is wise to meet with your attorney in private and not discuss the will with your beneficiaries until the document is in place. 
  • Use a No-Contest Clause – Probate laws allow for the inclusion of a no-contest clause in a will that states if a beneficiary challenges the will, he or she will not receive anything. As mentioned above, a no-contest clause is unenforceable if there is probable cause to challenge the validity of the will. If the probate court determines there is no probable cause, however, the contesting party may be completely excluded from any benefits.

In addition to probate litigation, our firm also helps clients prepare wills and other essential estate planning documents.  

Contact Our Experienced California and Arizona Probate Litigation Lawyers

Because the laws governing probate litigation are complicated, it is crucial to work with a capable attorney. Let the team at BoyesLegal, located in San Jose, guide you through the process and protect your inheritance rights. Contact our office today so we can start working on your case.