The Following is a Transcript of this Video. For More Information, CLICK HERE
Hi, this is Keith Davidson at Albertson & Davidson. In this video, I want to talk about when is the right time to contest a will. So a lot of times a will will actually be admitted to probate, as we call it, and then people will ask can I still challenge the will? And the answer normally is no.
But you have to understand what probate even is to understand why the answer would be no.
So when people create a will, it’s not technically considered a valid will in the eyes of the law until somebody takes it to court and asks the court to take a look at it and to make a declaration, an order that it is a valid will. And the way you do that is you file a Petition for Probate. So you file your Petition with the court. You say here’s the will, court. We think it’s valid. We want you to declare that yes, this is valid and open probate. And when the court issues that order, saying the will is valid, that’s what we call admitting the will to probate. And once the will is admitted to probate, then it can be administered under the will terms.
Well, the problem is that once the court admits the will to probate, it effectively is giving an order that yes, this will is valid. So if you want to contest that will as being invalid, you have to do it before the court admits it to probate, before the court issues its order that yes, this will is valid. Otherwise, you may have lost your right to do so.
Now, there is a separate section of the Probate Code that allows you to try to revoke a probate within 120 days of it being granted. But that’s risky. You, obviously, would rather contest the will before you ever get that court order saying it’s valid if you want to invalidate it. That’s very important.
Now the flip side of this is, if nobody ever asks the court to validate a will, then really your time line to go and contest that will never starts to run. And most people don’t try to admit a will to probate because most assets don’t pass under a will, they pass by trust, they pass by joint tenancy designation, they pass by insurance beneficiary designation; there’s all different ways that assets pass that don’t require a will. And if that’s the case in your estate, then nobody’s going to submit the will to probate. None of the assets are going to be governed under the will. It really doesn’t matter if the will is valid or invalid, because it’s not going to do anything.
But if you have an estate where a will is going to govern the distribution of assets, the transfer of assets from the decedent to a child or somebody else, then it does become important to contest that will if you disagree with its validity prior to that will being admitted to probate.