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How To Contest a Will

If you have been left out of a will or feel that the will is not fair, you may be wondering what your next steps are. In California, you have the right to contest a will if you believe something is wrong with it. Our probate litigation team at Giammichele Law, APC goes in-depth on everything you need to know about contesting a will in California.

What Does it Mean to Contest a Will?

When somebody dies and has a will, that will need to go through probate. This is the process of proving the validity of the will. Once the court does this, the assets in the will can be distributed according to its instructions. If you contest a will, you do not believe that it is valid, and you are going to try to prove that in court.

Who Can Dispute a Will?

Per California Probate Code Section 48, any interested party can contest a will. An interested person is someone who would be affected by the will if it were to be upheld. This can include heirs, beneficiaries, and creditors. In other words, anyone with a stake in the estate can contest the will.

Grounds for Contesting a Will in California

There are four main grounds for contesting a will in California:

  • Fraud: This includes any fraudulent activity used to create the will, such as forging signatures or adding/removing pages.
  • Duress occurs when someone is forced or coerced into signing a will against their wishes.
  • Incapacity: The person creating the will, known as the testator, was not of sound mind when the will was made. This can be due to mental illness, dementia, or Alzheimer's disease.
  • Undue Influence: This occurs when someone exerts undue influence over the testator to get them to sign a will that is not in their best interests.

Timeline of Contesting a Will

The process of disputing a will can be complicated. Your first step should be to consult with an experienced attorney who can help you navigate the process. Because California provides only 120 days to file a will contest after the will is admitted to probate, it is crucial to act quickly.

Once you have decided to contest the will, your attorney will need to file a petition with the court. This document will state the grounds for challenging the will and what relief you request from the court. The court will then set a hearing date, and both sides will have an opportunity to present their evidence and arguments. After the hearing, the judge will issue a decision. If you are not satisfied with the judge's decision, you may have the option to appeal.

How Long Does it Take to Contest a Will?

Generally, it will take at least twelve to twenty-four months for a trust or will contest the case to proceed to trial. Of course, this amount of time can change depending upon the various factors of a specific case. To avoid delay, you want to contest a will before it is admitted to probate. After being admitted to probate, the court enters an order to validate the will. If a petition for probate is never filed, then your deadline in which to contest the will never start running.

How Giammichele Law, APC Can Help

Do you believe you have grounds to contest a will? Our experienced attorneys can help you determine if you have a valid claim and what your next steps should be. We understand the difficulties you may encounter when going up against a loved one's estate, and we will fight for you every step of the way.

If you are looking for experienced legal representation, contact us today through our website or give us a call at (949) 303-7811 to schedule your consultation today!