If you recently lost someone close to you, you are undoubtedly going through the period of grief and heightened emotions that typically follows the death of a loved one. At some point, the decedent’s estate will begin the probate process which includes authenticating the decedent’s Last Will and Testament if one is submitted to the probate court. What happens though if you have concerns about the validity of that Will? Can you contest the Will? We will provide some general guidance relating to who can contest a Will and the Will contest process in California.
What Happens during Probate?
To understand the process of contesting a Will, you first need to understand some basics about the probate process. The estate of a decedent consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. Creditors of the estate are also notified and provided an opportunity to file claims during the probate process. If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative who then oversees the probate of the estate using the California intestate succession laws to distribute the estate assets.
Can You Contest 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.
Next, you need to consider whether you are acting within the time frame allowable by law. 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.
Finally, do you have the legal grounds to contest the Will? Being unhappy with your inheritance, or lack of an inheritance, is insufficient to initiate a Will contest. Instead, you must allege grounds on which the Will could 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.
If you have standing, believe you have the grounds on which to invalidate the Will, and you are within the allowable time frame to initiate the litigation, you can contest a Will in California and you should consult with an experienced estate planning attorney immediately to discuss your next step.
Please download our FREE estate planning checklist. If you have additional questions about contesting a Will in California, 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.