Legal Question in Wills and Trusts in California

If you have been disinherited, there is no harm in bringing a will or trust challenge, because you don't stand to lose. I am a little confused by your statement that a "new will and trust" were created, and then you state that you are unaware of any other wills and trusts. I assume you mean no other newer wills or trusts were created, but that there was an older will and trust that were revoked during the month prior to your father's death.

The next big question that I have is whether there was a probate. Proceedings to administer an estate are commenced by the filing of a probate petition. "At any time after a decedent's death, any interested person may commence proceedings for administration of the estate of the decedent by a petition to the court for an order determining the date and place of the decedent's death and for either or both of the following: (1) Appointment of a personal representative. (2) Probate of the decedent's will." (Prob. Code, � 8000.)

The will is supposed to be filed first. Unless a petition for probate is filed earlier, within 30 days after learning of decedent's death, the custodian of decedent's will must do both of the following: 1) Deliver the original will to the superior court clerk of the county in which the estate may be administered (no filing fee) and 2) mail a copy of the will to the named executor. (Prob. Code, � 8200 subd. (a).)

That procedure sets up the time limit to file a will challenge as either a pre probate or post probate will challenge. There are only two procedural methods for challenging a will, a contest before a will is admitted to probate, and a contest after a will is admitted to probate. A historical discussion of these two procedures is set forth with more detail in Estate of Horn. "Former Probate Code sections 370 and 380 provide separate procedural routes for contesting a will. Section 370 authorizes a contest before the will is admitted to probate; section 380 authorizes the contest after the will is admitted." (219 Cal.App.3d 67, 69.)

The term "pre-probate contest" is a term of art that refers to objections to a will before its admission to probate. A pre-probate will contest must be filed before the hearing set by the petition for letters of administration. "When a will is contested under Section 8004, the contestant shall file with the court an objection to probate of the will." (Prob. Code � 8250.) The very next section tells you that there has already been an appearance by a petitioner, who is a proponent of the will under attack. "The petitioner and any other interested person may jointly or separately answer the objection or demur to the objection within the time prescribed in the summons." (Prob. Code � 8251.)

A post probate will contest is called "revocation of probate." The time for filing a post probate objection is 120 days after the will is admitted to probate. "Within 120 days after a will is admitted to probate, any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest, may petition the court to revoke the probate of the will." (Prob. Code � 8270.)

As you can see, depending on what has been probated, your time may have run. Additionally, an attorney would want to review the documents, and speak to the attesting witnesses. Since you mentioned that your father died in 2006, your time may be running on any real property that may be subject to an adverse possession claim.

I would add that there are other potential issues (assuming the time has not already run on challenging this matter) such as whether the new beneficiaries were deemed caregivers, in which case there would be a presumption of undue influence. Also, there can sometimes be an issue of whether the will properly disniherited you and your brother, but you need to consult with an attorney in California ASAP as time may already have expired on certain claims.

I can think of several different claims you might have and you should sit down with an attorney ASAP to discuss your situation. If you want, please give us a call to discuss this further.

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