QUESTION
Can someone tell you a will isn't legal before it's even filed?
Asked on Nov 29th, 2016 on Wills and Probate - California
More details to this question:
Right before my mother died she had a day where you wouldn't have known she was even sick, and on that day she made a new will. My sister says because she was on medication that she wasn't sane so it's not valid. And because she could no longer physically sign her name I did in front of the witnesses at her request. There was nothing wrong with her mentally and she hadn't had any medication that day. Can my sister decide that it's not valid and that I can't be the executor like my mom requested.
2 ANSWERS
3 Awards
Does this will have to be probated? That is, did your mother die owning real estate, or bank accounts worth more than $100,000?
If she did, you will have to probate the will. You need to get an attorney to help with that. The cost is paid out of the estate. Your sister might object to your being named executor. In that case, you will argue that before a judge and he will decide. If the judge decides the will is not valid, either there will be probate or a prior will or there will be an intestate administration where assets are divided according to state law.
If the assets are below the probate level, you can handle the administration via small estate affidavit. I would recommend that, due to acrimony with your sister, you also have an attorney help you with that. You should keep detailed records of costs, money received, and money distributed, because your sister has already indicated she intends to be difficult.
Answered on Dec 19th, 2016 at 7:42 AM
Estate Litigation Attorney serving Redlands, CA
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California law presumes that someone is of sound mind when they make a will. Even if sometimes the person is not of sound mind, and sometimes they are of sound mind, California law presumes that they created the will at a time when they were of sound mind. This presumption can only be overcome with clear and convincing evidence.
What do you do? You submit the will to probate and let the probate court decide if the will is valid.
Answered on Dec 03rd, 2016 at 6:28 PM