What is Contested Probate? | The Inheritance Recovery Attorneys, LLP

The death of a family member can be a tumultuous time for you and your loved ones. In some cases this situation can bring the remaining family closer together, but other times it can further widen the rift between siblings and other members of the family. If someone does not receive a portion of the deceased’s estate they think is fair or is excluded from the will, he or she may contest the probate process. A probate contest can cost you significant time, money, and emotional stress, which is why you need an experienced probate attorney by your side to help you navigate the process. Call or contact The Inheritance Recovery Attorneys in California to learn more about contested probate and how it might affect your inheritance after a family loss.

What is Probate?

When a person passes away in California, any property that passes through the will or estate is submitted to probate. The executor named in the will is directed to account for the estate’s assets, liquidate if necessary any assets to pay off remaining debts, and then distribute the estate according to the directives of the will, all under the watchful eye of the probate court.

Contested probate occurs when one or more family members, heirs, or beneficiaries believe that they have a claim to some or all of the estate assets beyond what they are entitled to in the will submitted to probate court. A probate contest can happen for many reasons. For some, there are legitimate concerns or complaints about being excluded from the will, while others may contest probate because they are greedily attempting to take more than what they have been given.

Standing and Time Limits for Contesting Probate

In order to properly contest probate, a person must have standing and file the probate contest within a certain period of time. In order to have standing to make the complaint, a person must be an interested party in the estate. This includes the deceased person’s heirs, beneficiaries, and creditors to the estate. A neighbor or family friend cannot contest a will if he or she has never been included in the estate plan and has no evidence that he or she should be.

In addition, the statute of limitations in California limits when a person can contest the probate process. A petition contesting probate can be submitted to the court as soon as your family member passes away; however, if the executor of the estate has already filed a probate petition then a person should file the petition before the initial probate hearing. If a family member wants to contest probate after the initial probate hearing in which the will was submitted and accepted by the court, he or she only has 120 days after the hearing to file the petition.

Grounds for Contesting a Will

If a person has standing and files their petition within the statute of limitations for a probate contest, they must also have valid grounds for contesting the will. California law allows for contested probate on the following grounds:

  • Lack of Testamentary Capacity: A challenge that the deceased lacked the mental capacity to create, understand, or sign a will at the time it was made.
  • Undue Influence: Challenging the will based on the fact that an outside person, usually a family member, friend, or caretaker, influenced the deceased to the point where their desires for their estate will were overcome by the influencer and supplanted in the will for theirs.
  • Fraud: Claims that the will was produced by fraud or forgery. Common examples include inserting or removing pages of the will, hiding the will in a stack of papers to sign so the deceased did not know it was there, falsifying the deceased signature on a will, or submitting a will to probate that was an entire fabrication.
  • Duress: A challenge made that but for threats of force or harm to the deceased or the deceased’s loved ones they would have never agreed to the will submitted to probate.
  • Procedural Error: Claims that the will submitted fails due to errors in procedural law. Examples include being under the age of 18 years old when creating the will, failing to sign the will, and failing to secure two disinterested witnesses.

Talk to a Qualified Probate Attorney

Times are already difficult after the passing of a loved one, but when a family member decides to contest a will it can feel like too much to handle all at once. At The Inheritance Recovery Attorneys in California, our expert probate attorneys have zealously represented many clients in your situation and are ready to help. Call the office or contact us today to schedule a free consultation of your case with one of our experienced probate attorneys now.

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