If you feel that you have been unintentionally left out of a will, you are probably wondering about your rights. Some people omitted from wills have rights to inherit by law, while others must challenge the omission in court.
Omitted Children and Spouses
Sometimes, a person creating a will does not provide any inheritance for a child or a spouse. This frequently happens when the person makes the will before marriage or before birth of a child but neglects to change it afterwards.
California law automatically provides inheritances to omitted children who were born after the will was signed. They receive the portion of the estate that they would have received had the deceased person died without a will. Spouses who married after the will was signed also are entitled to inheritances by law. They receive half of the deceased person’s community property, half of the deceased person’s quasi-community property, and the portion of the separate property that they would have received had the deceased person died without a will.
Intentionally Disinherited
Sometimes it is intentional that a spouse, child, or other relative is not provided for in the will. Spouses and children cannot inherit if the deceased person’s will explicitly says that he or she does not leave any assets to them. The same is true for other relatives. If the will does not include an explicit statement about disinheritance, then it is less clear whether the deceased person intended to disinherit someone. This can lead to a probate court dispute.
What to Do If You Have Been Disinherited
If you have been disinherited explicitly or just left out of a relative’s will, you may have grounds to challenge the will in probate court. Common grounds for challenging a will include:
- Someone unduly influenced the deceased person into disinheriting people
- The deceased person was not of sound mind when he or she made the will
- Something is wrong with the will (such as being improperly witnessed or unsigned) and an earlier will should be used instead
You cannot challenge a will just because you have been disinherited – you must have good legal grounds to go to court. Anyone who feels that he or she has been wrongfully disinherited should talk to a probate lawyer about available options and legal theories.
Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.
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