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Many companies manufacture and sell “do it yourself” estate planning kits and forms. They purport to allow individuals to draft and execute their own testamentary will or trust. However, unfortunately, these forms are often legally insufficient to carry out the individual’s intent upon death. Other times, an attorney or other person may draft a will for a testator to execute. Unfortunately, they may have made unintentional errors in the will or trust. Such errors often go unnoticed until the will or trust is to be administered in probate court. Our Oakland probate litigation attorney represents family members whose loved ones left a defective or legally insufficient will or trust. The document fails to carry out the testator’s true intent.


California holographic wills do not have to follow the technical requirements for a formal will under the California Probate Code. Holographic wills are legal as long as the testator writes and signs the entire document in the testator’s own handwriting.

Codicils are amendments to existing wills. They must follow the statutory procedures of formal wills or holographic wills to be valid.

Problems often arise when a person has a legally executed will, but then, after death, a holographic will or codicil appears and purports to change the original will. In those situations, family members may suspect the holographic will or codicil is the result of undue influence or lack of capacity. Family members may have to litigate the issues to determine if the holographic will or codicil is legally enforceable to then amend or invalidate the original will.


To be valid, a will must comply with specific legal rules. However, many testators fail to comply with the technical rules and requirements. In some situations, the court may accept defective wills or trusts in probate nonetheless. The California Probate Code allows for a “harmless error” rule. In this rule, the court may overlook small mistakes in procedure or technicalities as long as the testator’s intent can be demonstrated by clear and convincing evidence.


Charles Triay, the founder of Triay Law Office, has been practicing contested probate litigation for over thirty years. He has provided unsurpassed representation in notable cases throughout Northern California. Unlike other law firms, the Triay Law Office gives clients the option to pay attorney fees on an hourly or contingency basis. 

Please contact our Oakland trust litigation attorneys today to explore what legal options may be available if you are the beneficiary to a defective will or trust.

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  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.​

  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.​

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.

About Triay Law Office

Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.

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4 Orinda Way Suite 200-Dorinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563

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