The Threat of Intestacy Proceedings
Any person with a legitimate interest in an estate can file a probate contest if they meet the criteria set by the California Probate Code.
If a previously unknown relative—such as a child, sibling, or grandchild—acquires compelling genetic evidence of a familial relationship during the decedent’s lifetime, they could be entitled to an inheritance under state intestacy laws. These laws are used to determine inheritances whenever someone dies with a will, trust, or other estate plan.
In the absence of an estate plan, the probate court will have to rely on an existing legal formula to decide how an estate should be disbursed. This formula broadly privileges close relatives such as a surviving:
- Spouse
- Child or children
- Parent(s)
- Sibling(s)
- Grandchild(ren)
If you do not have an estate plan, your family will not be able to influence how your estate is distributed. This means, someone who only realized they are related to you after taking a mail-order DNA test could seize your assets if they have a good attorney.
Protecting Your Family’s Legacy
Every adult resident of California who is of sound mind has the right to write a will, establish a trust, and make other preparations for the eventual dissolution and disbursement of their estate.
Since California law allows parents to disinherit children, siblings, and other relations, you could prevent a successful DNA-based estate challenge by:
- Writing a will which specifically disinherits the estranged or unknown relative
- Establishing a trust, which will protect your estate from outside scrutiny and could provide you with tax benefits while you are still alive
- Providing for the unknown relative with a small gift or other recognition of your relationship
If you have reason to believe your estate could be jeopardized by a DNA-based claim, you need to speak to an estate planning attorney. While writing a will can spare your loved ones from intestacy proceedings, it will not negate the need for probate.
Since probate courts are public courts, anyone can monitor challenges—meaning that any contest from an illegitimate child or unknown sibling has the potential to aggravate your loved ones, whether inside the court or out.
A revocable living trust or other novel estate planning instrument could be better suited to your estate and family situation. A revocable living trust, for instance, can:
- Protect your loved ones’ inheritances
- Shield your family from public probate proceedings
- Reduce or eliminate property taxes, estate taxes, and transfer fees
- Provide you with critical tax benefits and deductions while you are still alive
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