The time period following the death of a loved one is often a confusing time for the surviving family members and loved ones. Sometimes the grieving period is overshadowed by the legalities that must be addressed. For example, if you have reason to question the validity of the decedent’s Last Will and Testament, you will need to act on those concerns in a timely manner of forever waive the right to do so. The time period within which you can contest a Will in California is directly tied to when the Last Will and Testament document is submitted for a probate administration to the Probate Court in the county where the decedent died.
What Is Probate?
When an individual dies, the decedent’s estate may be required to go through probate. As to whether the estate must go through probate depends on the size of the estate and how the decedent held title to assets. Certain estate planning techniques, like a revocable living trust, can avoid the need for a probate administration. If a Will is located, the Will is submitted, along with a petition to open probate and a certified copy of the decedent’s death record, to the appropriate probate court. The probate process serves several functions, including allowing creditors the opportunity to file claims against the estate and eventually transferring estate assets to beneficiaries and/or heirs. One of the first tasks of the probate court, however, is authenticating the decedent’s Last Will and Testament. This is also the time when questions about the validity of the Will can be raised.
When Can You Contest a Will in California?
One of the functions of the probate process is to authenticate the Will purportedly executed by the decedent prior to his or her death. Because the probate court must authenticate the Will, you cannot contest the Will until it is submitted to the court for probate. In essence, a Will is just a document until the court says it is a valid Will. So you cannot challenge the validity of a Will until the Executor of the estate submits the Will to the probate court. At that point, however, you need to be prepared to contest the Will before the court admits the Will to probate. When a Will is submitted for probate, the court will set the matter for a hearing to determine authenticity. Ideally, if you plan to contest the Will, you need to object to it being admitted before the hearing.
If you miss your initial opportunity to contest the Will, you do get a second chance to do so under California law. If the Will was already declared valid, and therefore admitted to probate at the hearing, you have 120 days from the date it was admitted to file a petition contesting the Will and effectively asking the court to revoke its initial order that found the Will to be valid.
If you are contemplating a Will contest in Riverside or San Bernardino Counties, there are some additional requirements that must be considered to ensure that you are in a favorable position to pursue a challenge to the Will. The first consideration in any Will contest is whether or not you can contest the Will because a Will contest cannot be filed by just anyone. In legal terms, you must have “standing” to contest the Will. This means you must have a legal right to bring the initiate the litigation. In the case of a Will contest, only an “interested person” has standing in California. An “interested person” is someone who stands to benefit or lose something in the litigation. It usually refers to a legal heir of the estate, a beneficiary under the current Will or a previous Will, or a creditor of the estate.
You must also assert a valid legal reason for contesting the validity of the Will. Being left out of the Will or receiving less of an inheritance than you anticipated are not legal grounds on which to contest a Will. In California, grounds on which a Will could be declared invalid include:
- Lack of testamentary capacity – challenging the Testator’s mental state when the Will was executed.
- Undue influence – claiming that someone exerted an improper influence on the Testator during the drafting of the will.
- Fraud – challenging the Will because it was made as a result of fraud on the Testator.
- Duress – claiming that the Testator was unlawfully confined or detained when making the will.
- Mistake – challenging a Will by claiming that a mistake when the Will was made caused it to be invalid, or caused the contestant to fail to receive something the Testator intended him or her to get.
- Revocation – claiming that the Will was voided, or canceled out, by a later Will or similar document.
Don’t Forget the No Contest Clause
No Contest Clauses can be valid in California. A No Contest Clause would cause someone who is contesting the Will without a valid reason to do so to lose whatever his or her inheritance might be. So if the court finds that a contest is not brought in good faith or with valid reasons (even if the reasons are later found to be false), the contestant will lose whatever the Testator provided for him or her under the terms of the Will. For this reason, it is always important to consult with a knowledgeable Probate lawyer before bringing a Will contest in a Riverside County or San Bernardino County Probate Court.
If you question the validity of a recently deceased loved one’s Will, and you believe you meet all the legal requirements for contesting that Will, contact a Riverside County or San Bernardino County probate attorney right away to discuss your legal options. If you wait too long, your may be barred from ever contesting the Will in the future.
Contact Riverside Probate Lawyers
If you have additional questions or concerns regarding a Will contest in California, contact the experienced Riverside probate attorneys at Dennis M. Sandoval, A Professional Law Corporation by calling (951) 888-1460 to schedule an appointment.
Have a question? Ask Dennis.
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