When is a Will a Will? When the court issues an order saying the Will is valid. Before that time, the Will is just a possible Will. In other words, Wills do not take effect, and have no power to control the distribution of an estate, until the court first decides the Will is valid. We call that having the Will “admitted to probate.” Probate is just a court process to supervise (1) the validity of the Will, and (2) the administration of the estate under the terms of the Will. The first step in opening probate is asking the court to approve the validity of the Will.
Keep in mind that most people’s money and other property do not pass under a Will. Nowadays we use Trusts, joint tenancy, life insurance beneficiary designations, and similar vehicles to hold and pass assets after death. But for those cases where a decedent dies holding title to an asset in their individual name, then the Will controls how the asset is distributed.
Since the first step of any probate is to have the court issue an order validating the Will, you must contest the validity of the Will before that order is issued. Obviously, you do not want the court to say a Will is valid is you believe it is not valid. Before a Will is declared valid by the court you first want to file your Will contest complaint stating the legal reasons why the Will should be rejected by the Court. If you wait until after the court issues an order validating the Will, and admits the Will to probate, then it’s too late.
Actually, you can still request that the court revoke the probate if you file to do so within 120 days after the probate begins. But that is a highly risky move because your timing must be right (if you go past the 120-day deadline, you lose), and you are hoping the court grants your request. It is much better to file your will contest lawsuit BEFORE the Will is admitted to probate in the first place.
If no one ever asks the court to validate a will, then the timeline to contest the Will never starts to run. As we said before, it is common in most cases to NOT use a Will to pass assets. But in those cases where a Will is required, the process begins by someone filing a Petition for Probate and asking the court to validate the Will. This is when you must act if you wish to contest the Will. But if no one brings a Petition for Probate, then your deadline to contest the validity of the Will never expires.
