How Long Do You Have to Contest a Will? | CA Estate Litigation
- October 21, 2019 - Estate Litigation, Will Contests,
While there are a variety of grounds and reasons for contesting a will in California probate courts, there is an important precondition to a court challenge: standing to sue. In essence, you must have a property right affected by the will – in the words of the law – you must be an “interested person.”
California Probate Code Section 48 defines an “interested person” as an “heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” In the words of well-known trust and estate litigation Super Lawyer, Denise Chambliss, “it is black letter law that beneficiaries of an earlier will, whose interests are impaired or defeated by a later will offered for probate, have standing under Section 48 to contest a later will.”
And, what happens if the “interested person” succeeds in the will contest? This is an important concept – the concept of Pyrrhic Victory. This is a victory in which you win the battle but lose the war.
It is important to remember that a will contest victory changes the estate distribution to that which is set out in the most recent previous valid version of the will. If the will challenge is upheld and the challenger is not a beneficiary in the valid will, the challenger will likely get nothing. If there is no previous will, then the estate will be distributed in line with California rules of intestacy.
California law provides that any part of a decedent’s estate not effectively disposed of by will or other non-probate transfer mechanisms are distributed pursuant to California’s intestacy statutes. The statutes generally have different distribution mandates depending on whether the decedent had a surviving spouse but no children, surviving children, or single with no children. The particularities of the statutes should be reviewed prior to a will challenge.
The general grounds in both England and California for contesting a will include: Improper execution; lack of testamentary intent or capacity; undue influence; forgery, fraud, duress, mistake and revocation.
Since California is a community property state, special rules apply that limit a married spouse’s right of disposition to 50% of community property assets. Surviving spouses are entitled to get their 50% of community assets by law.
A challenge to a will that has been admitted to probate is untimely if filed after 120 days from the time of admission. If no timely contest is filed, the validity of the will is conclusively established. These time limits require some quick decision-making.
Will contests have long been an element of estate law. Common law jurisdictions like Australia, the UK including England, New Zealand, Canada and the United States all have lawyers/attorneys/solicitors/barristers who focus on will and trusts contests.
Hackard Law represents international, United States and California clients in California probate and civil courts in estate, trust, probate and elder financial abuse litigation. Our primary venues include Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.
We take substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing or breach of duty. If you would like to speak with us about your case, call us at 916 313-3030.
Attorney Michael Hackard
Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]