Contesting wills and trusts can be difficult because each document operates under a different set of rules. And each document has a different statute of limitations for contesting it.
Timeline for California Will Contests
You really cannot contest a California Will until someone offers the Will to be admitted into probate. Under California law, a Will is not a Will until a court says it’s a Will. In other words, a written Will is just evidence of a Will until the court admits it to probate. Probate is the process of proving the Will is valid. As a result, there is nothing to contest until a Petition for Probate is filed with the court. And in many estates a Will is not required because none of the decedent’s assets pass under his or her probate estate. As a result, the Will is never submitted to the court for admission to probate, and a contest never takes place (nor is it relevant, since no assets would pass under the contested Will anyway).
If, however, someone files a petition seeking to admit the Will to probate, then you must object to that petition and file your Will contest lawsuit before the Will is admitted to probate. Once the Will is admitted to probate, it is deemed a valid Will—the court issues an order saying the Will is valid. To prevent that order from being entered, you must contest the Will’s validity.
If you receive notice of a petition for probate on a Will you’d like to contest, you need to appear and object at the initial hearing. The court will then allow you time to file a written objection and a Will contest complaint where you must state the legal grounds you are using to challenging the validity of the Will.
Once a Will is admitted to probate, and thereby deemed valid, you still have one last chance to contest the Will. If you file a petition with the court within 120 days after the probate is opened, you can ask the court to revoke its order admitted the Will to probate. Again, you must file a petition stating your legal grounds for contesting the Will.
Avoiding Delays in Your Will Contest
Ideally, you want to contest a Will BEFORE it is admitted to probate because you do not want the court to enter an order validating the Will. But if a petition for probate is never filed, then your deadline in which to contest the Will never starts.
WARNING: there is a big warning here for creditors of the estate. If you are owed a debt from a decedent, and a probate estate is never opened, you still have only one year in which to bring your claim. A creditor has the right to open a probate estate. Once opened the creditor can file its claim against the estate in order to preserve the right to sue for the debt. If a creditor fails to do so within a year of the decedent’s death, then that creditor is forever barred from collecting that debt. (See CCP section 366.2 and 366.3.)
Timeline for California Trust Contests
For Trusts, the rules are quite different. A Trust contest must be commenced within 120 days after a beneficiary is given notice by the Trustee under Probate Code section 16061.7. The notice provides specific information that must be given to the Trust beneficiaries. Once the notice is mailed, the 120-day period begins. The 120-day period is extend by up to 60 days if a beneficiary requests a copy of the Trust document after receiving the initial notice. But it is best to contest a Trust within the initial 120-day period to be on the safe side.
If a beneficiary is given Trustee notice, but fails to file a Trust contest within 120 days, then the beneficiary is forever barred from contesting the Trust at any time in the future. If, however, statutory notice under section 16061.7 is never given, then the statute of limitations to contest the Trust remains open indefinitely. That’s not to say you should sit on your rights if you never receive notice. The court can still use its equitable powers to stop your lawsuit if you wait too long to bring it. But the legal requirements to contest a Trust depend on Trustee notice first being given to you. Once you are given notice, then the clock starts and you have to file quickly.
Regardless of whether you are contesting a Will or a Trust, the best way to proceed is to file promptly. The longer you wait to file your lawsuit, the more likely you are giving up valuable rights that may be lost forever.
