FAQs

The first thing you should do is consult with a lawyer as soon as possible to determine if you have legitimate grounds to file a caveat proceeding.

You can ask the court to probate the will as a lost will.

A will contest is a legal challenge to a will’s or a codicil’s (will amendment) validity; California has strict timelines and complex rules to decide whether the challenged will, or any other purported will or codicil, is valid.

While there is no exhaustive list of reasons for which a will contest may be brought, the most common reasons are:

• undue influence of a beneficiary
• the deceased person (testator) executed the will while under duress
• lack of “testamentary capacity” (lack of mental capacity to make a will) of the testator
• revocation of the will in question
• the testator was mistaken as to what he was signing
• the testator’s execution of the will was the product of fraud
• the will in question is a forgery.

The testator made an agreement to make a different sort of will

Any person who would be entitled to some property under the will in question or those interested in the estate may file a will contest. To be “interested in the estate” means that the person is detrimentally affected by the will in question. Those said to be “interested in the estate” includes heirs, next of kin, and anyone who would have inherited under a previous or later will, if valid and not otherwise revoked or replaced.

A will contest can be initiated within one hundred twenty daysafter the will has been admitted to probate.

Anyone who submitted the will for probate IS required to convince the court it was executed with the proper formalities required by law. If that burden is met, then the contester must prove by the greater weight of the evidence that the disputed will is invalid for some other reason including those reasons listed in response to question 3.

Yes. The judge has the discretion to order the reasonable costs and attorneys’ fees be paid out of the estate to the prevailing party in the form of extraordinary fees.

An executor is the person designated by the testator to administer the estate and is often a trusted relative or professional. When the court admits a will to probate, that fact shall be recorded in the minutes by the clerk and the will shall be filed. The Clerk of Court will then issue Letters Testamentary.

An executor has three basic duties:

(1) to determine, locate, and marshall the assets of the estate;

(2) to determine the lawful debts of the estate and pay them; and

(3) to distribute the remaining property to those entitled according to the will.

WHAT ARE THE COMMON CAUSES OF LITIGATION OVER TRUSTS?The most common causes of litigation regarding trusts are:

• one or more interested parties believes the trust instrument is invalid;
• the beneficiaries disagree with the trustee as to how the trust is being administered and whether it is being managed according to the trust instrument;
• changed circumstances the settlor did not reasonably anticipate warrant a modification of the trust; and
• the trustee is accused of breaching his or her fiduciary duties.
• the settlor forgot to change title from themselves to the trust.