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Will contests: Will I lose my share if I speak up?

You have lost a friend or family member, and they have left a will, and there is property involved. Yet, perhaps you have reasonable doubts about the validity of that will, or about some aspect of how it is being administered. What can you do?

You can contest a will in probate court. A will contest is a legal proceeding where the validity of a decedent's will is challenged by one or more beneficiaries of that will (see the law here). The process involves litigating (going to court) over the terms of the will to determine whether it was properly executed (written, signed and witnessed) and whether it reflects the intentions of the deceased.

You can contest a will for any number of the following reasons:

  • You think it is fraudulent
  • The will was unsigned
  • You believe the person who created the will lacked the capacity to legally sign it
  • You have cause to suspect that the person that created the will was unduly influenced during its creation
  • You feel that someone else should be the executor of the will

Will you lose your share if you speak up? The answer is "no," provided you speak up sooner rather than later. Once upon a time, executors could reference a no-contest clause in the will and disinherit you for contesting it, but that no longer applies in California. If you have any doubts, by all means, contest the will.

Time matters. If you have concerns, act now.

You must bring a will content in a timely manner. There are specific deadlines by which you need to contest a will. If you miss the deadline, the court will determine that you have consented to the probate of the will.

When the probate of the will has begun, you will receive written notice in the mail telling you that there is a court date at which there will be a hearing to determine if the will is going to be admitted to probate by the probate court.

The first hearing date, which will fall between 30 and 75 days from the date the probate petition is filed, is the day you must have your objection on file with the court. You can show up in court or have your attorney show up in court to file an objection, then the court may elect to give you a little more time to file your objection. But if you miss that deadline, it's too late.

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