Wills, trusts, and estate planning refers to various types of legal documents and procedures which may be used to settle an individual’s estate after they pass away. Each of the legal tools has its own separate requirements, which are usually set out in the estate laws of the jurisdiction in which the individual resided.
A will is a legal instrument which contains instructions regarding how to distribute the assets and property of its creator upon their passing. The individual who creates a will is known as a testator. The individual who is responsible for ensuring that the last wishes of the testator are carried out is known as the executor.
A trust is a specific type of legal relationship which is formed between three parties that allows a property owner to securely transfer their assets to the other parties. The three parties to a trust arrangement include:
- The settlor, or the creator of the trust;
- The trustee, or the individual who is tasked with managing the contents of the trust; and
- The trust beneficiaries, who are the individuals who stand to inherit the assets within the trust.
Estate planning is the process which an individual uses when deciding whether to draft a will or to set up a trust for their assets. An estate includes the entirety of the testator’s assets and wealth, including:
- Land;
- Money;
- Insurance;
- Investments;
- Personal property;
- Real property; and
- Debts.
When completed properly, estate planning can be a powerful tool.
For example, it can assist an individual in selecting the best method by which to distribute their property. It can also assist in identifying the type of will or trust the individual should create and how or if they will be able to avoid the probate process.
What is Will Settlement?
A will settlement refers to a legal procedure which is used to resolve a dispute involving a will. A will is a legally binding document which is created and signed by an individual for the purpose of distributing their property and their assets upon their death.
A will settlement frequently requires examination of the documents that were created as part of the estate planning process. For example, if the will indicates that certain property is to be disposed of by a trust, then the trust document which was created during estate planning may be examined.
A will contains instructions regarding how the testator’s property and assets, or their estate, will be distributed after their death. It also includes directions regarding to whom specific assets are to be distributed.
When the testator dies, their will is submitted to the court to be probated, or proven. In general, this process begins by submitting the will to the probate court.
To probate a will means to distribute the testator’s property in accordance with the terms of their will. The probate proceeding is the means by which the court gives the legal approval for the distribution of the property.
Ideally, the terms of a will are clear, the distribution is approved by the court, and each beneficiary receives their distribution without any argument. In many cases, though, disagreements regarding the distribution of money or property do occur, often among family members.
These types of disagreements are resolved through a will settlement. This may occur privately or through the court. A private settlement involves negotiation between the executor and the individuals who have taken issue with what was or was not distributed to them under the will. A private settlement may also consist of the parties negotiating directly in order to resolve the issue.
A private settlement may also involve the use of an intermediary, through a process called alternative dispute resolution (ADR). This process involves the submission of the dispute to an arbitrator, mediator, or another neutral third party. ADR is typically less expensive and allows for faster dispute resolution than resolving the dispute through court proceedings.
What is a Will Contest? How Does One Work?
If a party is not satisfied with the outcome of ADR or they do not wish to use that process, they can initiate a will contest in court. A will contest is heard by a special judge known as a probate judge. This type of judge resolves contested issues by applying relevant laws in order to best give effect to the testator’s wishes regarding their property distribution.
A will contest allows a dissatisfied party to challenge part of all of a will on specific grounds. These grounds can include but are not limited to:
- Whether the testator had testamentary capacity, or legal capacity, to create a will;
- Whether the will, or part of the will, was the product of fraud or forgery;
- Whether another will exists that renders the will that is being disputed outdated or void;
- Whether the proper formalities were observed during will execution, including whether witnesses were present, whether the testator acknowledged their signature in the witnesses’ presence, etc.; or
- There is a latent ambiguity in the will, such that introduction of evidence, relevant to the intent of what the testator said prior to their death, such as to friends or to family may be required;
- A latent ambiguity is a misdescription of individuals or property that is not obvious on its face. An example is when a will provides, “I bequeath $1,000 to JJS.” The testator has a relative named JAS, and another named JPS, but not one named JJS.
It is important to note that a will contest often subjects parties to significant court costs and attorney’s fees. In addition, these proceedings can take months or years to resolve.
How are Will Disputes or Contests Resolved?
If individuals do not or are unable to resolve an issue amongst themselves or request that a probate court intervene, the interested parties can enter into a private negotiation to settle the issue. This will require discussions with the executor of the estate because that is the individual who is responsible for making sure the testator’s last wishes are properly carried out.
The parties may also choose to enter into an alternative method of dispute resolution, which may include mediation or arbitration. Each of these methods has its own rules and procedure requirements for resolving the legal issues. For example, in an arbitration, an arbitrator, or a neutral third party, listens to the arguments of each party and decides on the issue being contested.
Does the Bakersfield/Central Coast Area have any Unique WTE Laws?
There are unique laws in California regarding compensating probate lawyers. Unlike the majority of states, California law makes it standard for a probate lawyer to charge, as their fee, a percentage of the gross value of the assets which pass through probate. The percentages are provided by the California Probate Code as follows:
- 4% of the first $100,000 of the gross value of the estate which is being probated;
- 3% of the next $100,000;
- 2% of the next $800,000;
- 1% of the next $9 million; and
- .5% of the next 15 million.
There are other major differences between a last will and testament and a trust, such as the level of privacy. When filing for probate, a will becomes public record in California.
This means that all documents which are filed with the probate court can be accessed by the public forever. Any assets, beneficiaries, and other items contained in the will are available for anyone to see.
In contrast, a trust is not made public and maintains a level of privacy by avoiding the probate process. When the grantor passes away, the assets of the trust are distributed to the trustee or trustees without any court interference.
Should I Hire a Lawyer for Help with Will Settlement Issues in the Bakersfield Central Coast Area?
Yes, it is essential to have the assistance of an estate attorney for any will settlement issues you may have in the Bakersfield Central Coast Area. A will settlement can involve complex legal issues related to the estate and the process may seem overwhelming.
If you are seeking to settle a will or are a party to a will settlement, your attorney will ensure that your rights and desires are protected during the settlement process.
