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Probate Calculator Form

In California, the probate code sets a statutory fee for attorneys and executors for the administration of an estate. Many families are shocked to learn just how much the probate process will cost them, often leaving them with a much smaller inheritance than they’d expected. Use our calculator below to estimate Probate fees for estates over $184,500, but less than $10,000,000. Probate fees are set by California Probate Code Section 10810.

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Home / Estate Planning / If an in-law draws up a Will or Trust for the parent of his or her spouse, does that void his/her spouse’s share of the inheritance?

If an in-law draws up a Will or Trust for the parent of his or her spouse, does that void his/her spouse’s share of the inheritance?

Estate Planning

I was asked whether or not a daughter, whose husband prepared a will for the daughter’s mother, is disinherited because of her husband’s involvement, specifically in reference to Probate Code Sections 21380 and following.  The answer is more complicated than the question.

Probate Code Section 21380 does not “disinherit” anyone.  What it does is create a “presumption” that the instrument (such as a will or a trust, or other dispositive document) was obtained as a result of fraud and/or undue influence. If the provision is contested in court, the court is required to presume fraud or undue influence occurred and thus the provision is voided unless refuted by convincing evidence that no such fraud or undue influence occurred. 

The presumption arises under certain circumstances, such as:

  1. The person who wrote the instrument is the beneficiary of a dispositive provision in their favor (Probate Code Section 21380(a)(1)); or
  2. The person who wrote the instrument is the  spouse of the beneficiary of a dispositive provision in their favor (Probate Code Section 21380(a)(4), and Probate Code Section 21374(a)(1));
  3. Other categories as defined by Probate Code Section 21380.

But there are exceptions to the rules creating the presumption.  For instance, no presumption will arise if:

  1. The person who wrote the instrument is the beneficiary of a dispositive provision in their own favor and is also living with the transferor, or is related to them by blood or affinity (the son-in-law) within the fourth degree (Probate Code Section 21382(b)); or
  2. The person who wrote the instrument is the  spouse of the beneficiary of a dispositive provision in their favor, and such person is also living with the transferor (Probate Code Section 21382(b), and Probate Code Section 21374(a)(1));
  3. Other categories as defined by Probate Code Section 21382 exist.
  4. An independent attorney certifies to certain facts pertaining to the execution of the document after an attorney has reviewed it. (Probate Code Section 21384).

DISCLAIMER: This posting is provided for general educational purposes only, and nothing herein should be interpreted as legal advice provided to anyone in particular.

Roy W. Litherland is licensed to practice law only in the State California. For questions connected with the laws of other states you should seek an Attorney in that state to advise you.

Litherland, Kennedy & Associates, APC, Attorneys at Law
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