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When and How Should I Contest a Will in California?
January 04, 2023
People are legally allowed to contest wills in California, but there are several requirements that need to be followed. Not least of which is the requirement to have a sound reason–with
evidence to back it up–to contest the will. It’s a complex situation that could benefit from working with probate litigation attorneys with knowledge and experience in this area.
Who Can Contest a Will in California?
California law states that only interested parties may contest a will. “Interested parties” is defined as:
- People or companies who were owed money by the decedent
- Anyone named in the will as a beneficiary
- The decedent’s heirs
If someone doesn’t fall into one of those three categories, they have no standing to contest a will.
What Are Grounds for Contesting a Will in California?
People can’t contest a will simply because they disagree with it. The courts want a solid claim behind such an action. Among the possible reasons for contesting a will:
- Mental capacity. Anyone over the age of 18 can create a will. However, if there is reason to believe that the adult in question was not of sound mind when making the will, it could be cause for contesting. An example is an elderly person with some form of dementia who changes a will or someone who had a brain injury or stroke that reduced their mental capacity. The threshold is that they don’t understand what they’re doing when creating or amending a will or don’t fully understand the nature of their estate.
- Fraud or undue influence. Unfortunately, there are many people who are willing to force someone to add them to their will under duress or even threat. There are also people who will forge a will or falsify an existing will to add themselves. Proof of this is a good reason to move forward with contesting the will.
- Multiple wills. Sometimes people have multiple wills. This can occur when a new will is being developed to replace an existing will. But if the decedent dies before establishing which will is the right one, the probate court will likely have to determine which will is valid.
- Unmet legal provisions. In California, there are specific requirements for making a valid will. For example, the decedent must sign the will with two witnesses present. The witnesses may not be beneficiaries of the will. Once the decedent signs the will, the witnesses must each sign it too. These sound like small things, but if they’re not done, the will may not be considered valid. Working with an estate planning attorney can help you avoid these types of pitfalls when developing your will.
What Is a No-Contest Clause?
A no-contest clause is legal language in a will that says that if one of the will’s beneficiaries contests the will, they’ll lose whatever inheritance they stood to gain from the will. It’s meant to discourage people from contesting wills because they could lose everything.
However, California law has changed over the years so that no-contest clauses are only enforceable in these specific circumstances:
- Someone tries to contest a will without any evidence or probable cause.
- Creditors try to make a claim by contesting.
- Someone challenges a transfer of property by claiming the transferor did not own it at the time of transfer.
Is There a Time Limit for Contesting a Will in California?
Yes. A will can only be contested when the person who created it passes away. At that point, once the probate for the will is opened, you have 120 days to contest the will. To challenge the
will, you need to put in a formal written request stating the grounds and providing evidence to prove the grounds. Once 120 days elapse, it’s unlikely that a probate court will accept the case.
What Is the Process for Contesting a Will in California?
The process begins once the will has been submitted to probate. California law states that the will is not a will until the probate court receives it; prior to that time, it’s evidence of a will, but not a will itself, and as such, can’t be challenged.
Once the will is in probate, there will be a hearing at which the person contesting it needs to appear and state that they object to the will. At that point, the probate court will assign a date by which the contester needs to file a written objection. This is best done with the guidance of a probate litigation attorney because the probate court is strict about what constitutes a valid challenge to a will. As detailed above, there must be specific reasons to contest and evidence to back up those reasons.
Once the court issues an order saying the will is valid, there’s one last chance to contest it. A petition can be filed with the court objecting to the will and asking the court to revoke that order. This is the part that needs to be done within 120 days of the court acknowledging the will’s validity.
What Should I Do if I Need to Contest a Will in California?
Call us at 916-685-7878 for a free consultation. Contesting a will isn’t a step to be
taken lightly, and we’ll walk you through what you need to know and examine the merits of your case. Because there is a limited amount of time to contest a will, it’s critical that we begin work as soon as possible in order to determine the evidence needed to prove the contest is legitimate.
Mr. Cianchetta is an OUTSTANDING attorney. I was a little nervous about seeing an attorney for my case. Mr. Cianchetta and his staff made my wife and I feel right at ease. He took extra time explaining what to expect before, during and after our process. His advice was right on!- Jack M.