The emotional aftermath that follows the death of a family member is rarely easy to handle. Survivors often experience a number of heightened emotions, including grief, despair, and even anger. It can also be a confusing time for those left behind as they try and focus on the practical and legal ramifications of their loved one’s passing. What happens though, when questions arise about your loved one’s last days, weeks, or months? Specifically, what should you do if you question the validity of the Last Will and Testament purportedly created and executed by your loved one prior to his or her death? We will discuss this below.
What Is Probate?
When an individual dies, the decedent’s estate is required to go through probate. 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 Will. This is also the time when questions about the validity of the Will can be raised.
Preliminary Questions and Issues
If someone believes the Will submitted for probate is not valid, the way to raise that issue with the court is to initiate a Will contest. Only an “interested person” may contest a Will though. This typically includes legal heirs of the estate, a beneficiary under the current Will along with beneficiaries from a previous Will, or even creditors of the estate or decedent. If you are a beneficiary or heir, keep in mind that simply being unhappy with the inheritance left to you under the terms of the Will is insufficient cause to initiate a challenge to the Will. Instead, to succeed you must allege and prove legal grounds on which the Will can be invalidated. In addition, the Will contest must be filed in a timely manner. A Will contest can be filed before a petition to probate the estate has been filed or prior to a hearing on the petition if it has already been filed. If the Executor has already filed the petition and the hearing has already occurred wherein the court accepted the Will for probate, a contestant only has 120 days from the date of the hearing to contest the Will.
Do You Have Grounds to Contest the Will?
For the court to entertain a Will contest, the contestant must allege one of the legal grounds on which a Will may be declared invalid in the State of California, including:
- Lack of testamentary intent or capacity – alleging that the decedent did not have the required mental state when the Will was made.
- Undue influence – claiming that there was an improper influence, usually from another person, at the time the Will was drafted and that affected the terms/drafting of the Will.
- Fraud –claiming that the Will was made as a result of fraud on the decedent or that fraud was used to create the Will.
- Duress – alleging that the decedent was unlawfully confined or detained when making the will.
- Mistake –claiming a mistake when the Will was made caused it to be invalid, or that a mistake is preventing you from receiving something from the estate to which you are legally entitled.
- Revocation –claiming that the Will was voided, or cancelled out by a later Will or similar document.
Please download our FREE estate planning checklist. While our firm does not handle contested matters such as will and trust contests, we can assist with planning to reduce or eliminate the possibility of such challenges. To protect your future and the future of your loved ones, start today by creating an effective and comprehensive estate plan. To begin, contact us at the Northern California Center for Estate Planning & Elder Law today by calling (916)-437-3500 or by filling out our online contact form.