Contesting a Will

How to Contest a Will in California

Wills can be contested for a variety of reasons, the most common of which is for wills that were made fraudulently. Contesting a will is something you can do on your own, but you should enlist the aid of an experienced probate attorney to help you. Not only will your lawyer know the procedure to follow in your will contest, but he will also improve your chances of success. There is only a limited amount of time you have to contest a will after probate has begun, so be sure to file any necessary paperwork as soon as possible.

Difficulty: Challenging

Instructions

  1. 1

    Ensure that you have standing to challenge the will. The only people who can challenge a will are those who are specifically named in the will, were named in a previous will or would have received a share of the estate under intestacy laws (California laws that determine how an estate is divided when someone dies without a will). Individuals in the last category tend to be spouses or children.

  2. 2

    Identify the legal reason you have for contesting the will. You cannot contest a will merely because you do not like it; California requires that you have a specific legal reason. The most common reasons are lack of capacity (Californians must be at least 18-years-old and of sound mind to create a will), duress (if someone coerced the individual to make a will), menace (if someone threatened to injure or blackmail the individual unless she made a will), fraud, undue influence (someone took advantage of a relationship with the deceased to encourage her to make a will) and mistake.

  3. 3

    Look for any no contest clauses in the will. Some wills include provisions that disinherit beneficiaries if they attempt to challenge a will. If such a provision exists, you will have to decide if it is worth the risk to challenge the will, as a failure will mean that you will not collect anything from the estate.

  4. 4

    File an objection with the probate court that is handling the individual’s estate. Your objection must state your reasons and explain why you have standing on the issue. The form of the objection will vary depending on your jurisdiction within California, but the clerk of the probate court should be able to provide you with a document to fill out if you are representing yourself.

  5. 5

    Attend the hearing that is assigned to you. At the hearing, you will have the burden to prove why the will is invalid. Present any evidence you have (including previous wills if any exist) and try to convince the probate judge that the will in question should not be used to distribute the estate.

Post Date: May 6, 2010 | Author: By Kyle Cavnett, eHow

Tips & Warnings

  • A probate attorney will be able to determine if you have standing to challenge the will, if your reasons for contesting the will are legally valid and if it’s a good idea to challenge (based on familial relations or no contest clauses). He will also be able to help you with the process. Unless you are very confident that you understand the formalities of California probate court, do not attempt to contest a will on your own.

.

Learn to how to probate an estate in California, here.

CONTACT San Diego Trusts Attorney (619) 630-7766

Questions? – Please feel free to comment!