The loss of a loved one triggers a number of practical and legal steps that must be taken, starting with locating the decedent’s Last Will and Testament. If you are an heir or beneficiary of that Will, you should be notified when the Will is submitted for probate. What happens if you have doubts about the validity of the Will? Is it difficult to contest a Will in California? Because every potential Will contest involves a unique set of facts and circumstances, you should consult with an experienced California probate attorney before deciding how to handle your concerns. It may help, however, to gain a better understanding of what it means to contest a Will in California.
What Is Probate?
Probate is the legal process that follows the death of an individual. Probate serves several important purposes, including:
- Ensuring that the decedent’s assets are identified, located, valued, and eventually passed down to the intended beneficiaries and/or heirs of the estate.
- Authenticating the decedent’s Will and litigating any challenges to its authenticity.
- Notifying creditors and providing them with the opportunity to file claims against the estate.
- Paying all approved claims as well as any gift and estate taxes due.
Requirements for Contesting a Will in California
There are several requirements that must be met in order to contest a Will in California. To begin with, you must have “standing” to initiate a Will contest. Only an “interested person” has standing, meaning on an “interested person” can contest a Will in California. An “interested person” typically includes legal heirs of the estate, beneficiaries under the current Will or a previous Will, or creditors of the estate.
A Will contest must also 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.
Contrary to what many people believe, you cannot pursue a Will contest just because you were left out of the Will, or because you did not receive what you expected in the Will. You must allege (and ultimately prove to be successful) one of the recognized legal grounds on which a Will can be declared invalid. 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.
What Happens after a Contest Is Filed?
In a Will contest, the person contesting the Will has the burden of proving that the Will is invalid. Depending on the grounds, that can be a difficult and lengthy process. The Executor of the Will has a legal obligation to defend the Will. Consequently, the process can takes months, even years, to reach a conclusion. Both sides will engage in discovery and likely try to negotiate a settlement in an effort to avoid a costly trial; however, if a settlement is not forthcoming the case will proceed to trial. One important aspect of a Will contest though is that the probate of the estate effectively grinds to a halt while the Will contest is litigated. This is necessary because the outcome of the Will contest determines how the estate is ultimately distributed. If you are successful, the Will is invalidated and the California intestate succession laws will be used to distribute the estate assets unless another valid Will is located. If you are not successful, the Will is declared valid and the probate process resumes using the terms of that Will to distribute the estate assets.
The best way to avoid a Will Contest is to work with an experienced and qualified estate planning attorney to create a comprehensive estate plan. Please download our FREE estate planning checklist. If you have additional questions about estate planning, 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.
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