Legal Question in Wills and Trusts in California

Proponent of the will has the burden of proof prior to the will being admitted to probate. After the will is admitted to probate the person challenging the will has four months/120 days from admission of will to probate to challenge will. If there is fraud, four years from from discovery of fraud even though will admitted to probate. The foregoing does not constitute legal advice and should not be relied on as such. Call me at 916-235-8700x123 if you have further questions. Jim.

Proponent of the will has the burden of proof prior to the will being admitted to probate. After the will is admitted to probate the person challenging the will has four months/120 days from admission of will to probate to challenge will. If there is fraud, four years from discovery of fraud even though will admitted to probate. The foregoing does not constitute legal advice and should not be relied on as such. Call me at 916-235-8700x123 if you have further questions. Jim.

It depends on what you are challenging and the underlying procedural status of the probate.

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)(emphasis added).

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).

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 the case 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." (Estate of Horn, 219 Cal. App. 3d 67, 69 (emphasis added, footnotes omitted).)