Losing a loved one is a challenging and emotional experience, and matters can become even more complex when concerns arise about the validity of the Will. Contesting a Will is a legal process that allows family members, particularly children, parents or other possible heirs, to challenge the admission of a Will to probate.
In California, as in many other jurisdictions, there are specific time limits in which one can contest the Will. Understanding these timeframes is crucial, particularly in the challenging aftermath of a loved one’s passing. This article, l explores the question: “how long do you have to contest a Will in California?” while examining the role of an estate contest attorney, who can help build a strong case and navigate the legal intricacies involved in contesting a Will.
Probate is the legal process through which a deceased person’s Will is officially recognized and the deceased person’s assets are marshaled, taxes and approved debts are paid, and an accounting is filed seeking approval for the administration of the estate, payment for the costs of administration, and the distribution of the intended gifts. By design this process is intended to be swift although times for completion have increased over the years for many reasons.
So, family members should be aware of this relatively short timeframe and seek to take action as soon as possible if they have concerns about the Will.
Contests Before the Will is Admitted
If a Will has not yet been admitted to probate, a person can contest or oppose the petition seeking to admit the Will to probate.
Contests After the Will is Admitted to Probate – Just 120 Days
The state of California has established a statute of limitations for contesting a Will included in an estate plan that has already been admitted to probate – that is, the petition to probate the Will has been granted.
A contest of a Will after it has been admitted to probate is essentially a petition to revoke the probate of the Will. That post admission of the Will contest must be filed within 120 days from the date the Will is admitted to probate.
However, the 120-day limitation does not apply to a person who was a minor or incompetent and had no guardian or conservator when the will was admitted to probate. Such a person may file a petition to revoke probate of the will at any time before entry of an order for final distribution.
Also, the 120-day period may be tolled during the pendency of an appeal from the order admitting the Will to probate.
Intrinsic fraud (such as deceit in transactions, perjury during a trial, forgery, bribing witnesses) will not extend the deadline for petitioning to revoke.
Extrinsic fraud (where a party is deprived of the opportunity to present her claim or defense to the court, or in some manner fraudulently prevented from fully participating in the proceeding) or extrinsic mistake may extend the deadline, although an independent action or proceeding may be required.
So, if you fail to contest the Will within the required 120-day limitation, you will likely lose your chance to contest the Will altogether.
Taking Action Fast
When a Will is contested, the proponents of the Will have the burden of proof of due execution. The contestants of the Will have the burden of proof as to whether the Will is invalid for lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation
With the assistance of an estate contest attorney, individuals can gather the necessary evidence and build a strong case to present in court.
To contest a Will effectively in California, swift action is imperative. Seeking the assistance of an attorney is a prudent step to navigate the legal complexities involved. If you are intent on mounting the timely contest of a Will, contact The Kiken Group for advice, counsel and representation of an experienced probate attorney.