The death of a loved one can be incredibly sad and, in some cases, a traumatic experience. However, that pain can be magnified if you discover you were left out of a will, whether you assumed or were told that you would be included.
To determine if you have a rightful claim to someone’s estate, there are several timely actions you should take to find out what happened and whether you have grounds to contest a will. In most cases, it can be an uphill battle.
Consider the costs of contesting a will
Under California law, you must be an “interested party” to challenge a will legally. Those individuals include spouses, children and creditors. If the decedent discussed leaving you an inheritance, write down all the details you remember, including a low to a high estimate of the dollar amount.
If the cost of contesting the will is less than the amount you stand to receive, the services of an experienced estate litigation attorney can be beneficial in filing a contest and determining the grounds related to your legal challenge.
Filing a challenge in California
You can contest a will immediately after someone dies, but you only have 120 days after the will has been admitted to probate. To be successful, you must have a legitimate claim, such as:
- Fraud or undue influence: You must prove that the decedent was taken advantage of by another party.
- Mental capacity: You must prove that the decedent was unable to make decisions for themselves due to a medical condition, such as dementia, or for other reasons, including substance abuse.
- Invalid documents: In California, a will must be typed or written and signed in the presence of two witnesses. If either of these steps didn’t happen, the will could be considered invalid.
- Multiple drafts: On occasion, more than one version of a person’s will is available. Courts typically consider the most recent draft to be the legal document.
Don’t delay if you believe you were wrongfully excluded from a will
It’s estimated that 99% of all wills or trusts pass through probate without an issue. However, many challenges can arise, and it’s in your best interest to take action as soon as possible. Working with an attorney with considerable knowledge about will contests can help you determine whether you have a winnable challenge.