Legal Question in Wills and Trusts in California

see Probate Code Section 8270:

8270. (a) 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. The petition shall include objections setting forth written grounds of opposition.

(b) Notwithstanding subdivision (a), a person who was a minor or who was incompetent and had no guardian or conservator at the time a will was admitted to probate may petition the court to revoke the probate of the will at any time before entry of an order for final

distribution.

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)(emphasis added, footnotes omitted.)

The term "pre-probate contest" is a term of art that refers to objections to a will before its admission to probate. This occurs before a will is admitted to probate. "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).

Mr. Field's response refers to what is known as a post probate will contest. 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).