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When may the court consider a will invalid and what may occur?

On Behalf of | Feb 14, 2022 | Firm News

California probate court judges oversee transferring assets to the heirs named within a valid will. If you wrote out a will while experiencing a cognitive or mental health issue, however, your heirs may contest its validity.

As noted on the California Legislative Information website, without sufficient mental capacity during the will’s execution, the court may not recognize your instructions as valid. Judges may also consider unsigned wills or those without the signature of two or more witnesses as invalid.

How may assets transfer if a judge deems my will as invalid?

If a judge finds your will invalid, the probate court could consider your estate as “intestate,” which means death without a will. A probate court judge may then distribute your property under California’s intestate inheritance laws. The court generally seeks out the closest surviving heirs.

California’s intestate succession laws require heirs to outlive the deceased for at least 120 hours. After this time the court considers them as successors. If, for example, your spouse dies the day after you, your property may transfer to the next individual in the line of succession. The law may recognize the children you had with your current spouse or your surviving parents as heirs.

How may community property influence a spouse’s inheritance?

Because California follows community property laws, without a valid will all your marital assets become your surviving spouse’s property, as noted by If you have children, they may share one-half of your separate property while your surviving spouse receives the other half. Separate property includes gifts or inheritances that you received during your marriage. It may also include assets listed in a signed prenuptial agreement.

Without a valid will, the probate court may not recognize your wishes. You may need to complete several steps to create a will that leaves your assets to the heirs you choose.