Whether a will can be contested after probate depends on when you’re attempting to challenge it. Are you seeking to contest the will after it has been admitted to probate, or after probate has fully concluded? This distinction is important, as the former is generally permitted, whereas the latter is usually not.
Understanding why this distinction matters requires a basic grasp of how probate works. Probate is the court-supervised process through which a decedent’s will is authenticated, outstanding debts and taxes are paid, and assets are distributed to beneficiaries according to the terms of the will. If no valid will exists, assets are distributed to the decedent’s closest living heirs according to intestate succession laws.
Once probate concludes, it becomes extremely difficult, if not impossible, to recover assets that have already been distributed, which is why challenging a will after probate concludes is almost never permitted. Before probate ends, however, there are several avenues for contesting a will.
Typically, the process begins when an interested party, sometimes the executor named in the will, files a petition for probate with the court. This triggers the court to set a date for the initial probate hearing. The petitioning party then becomes responsible for serving notice of the hearing to all beneficiaries and heirs, which must include information about their right to contest the will within a specific timeframe.
As long as beneficiaries and heirs have a financial stake in the outcome and valid legal grounds for their contest, they can raise objections before the will is admitted to probate. This can be done by filing a written objection to the probate petition and a will contest petition in advance of the hearing, or by appearing at the hearing to object in person.
If successful, this strategy prevents the will from being admitted to probate. In its place, a different valid will may be submitted instead or, if no valid will exists, the petitioning party may seek to have an administrator appointed to distribute estate assets according to intestate succession laws.
That said, if you are unable to object before the hearing, you may still have an opportunity to dispute the will after probate has been granted — though you must do so within the statute of limitations for contesting a will.
We’ll explore what’s involved in contesting a will after probate is granted in more detail below.
Can a Will Be Contested After Probate Is Granted?
A will generally can be contested after probate is granted — but the clock starts ticking immediately. Because the window to act is limited, it’s critical to understand the rules and deadlines that apply.
To challenge a will after probate has been granted, you must file a will contest petition with the court that outlines your legal grounds for seeking to invalidate the will. Ideally, you’ll be working with a skilled will contest attorney who can prepare and file the petition on your behalf.
While the petition itself is vital to the success of your case, timing is arguably even more important. A will contest must be filed within a statutory deadline.
How Long After Probate Can a Will Be Contested?
Under California Probate Code section 8270, a will contest must be filed within 120 days of the will being admitted to probate. In cases where the probate petition is approved at the first hearing, this may mean within 120 days from the date of the first hearing.
Failing to file within this timeframe can bar your contest — even if your claims have merit — so it’s essential to act quickly and consult with an attorney as soon as you become aware of a potential issue with the document.
Under What Conditions Can a Will Be Challenged After Probate Is Granted?
While filing your will contest on time is critical, it’s not the only requirement. Several other conditions must be met in order for a will contest to move forward after probate is granted.
You Must Have Legal Standing and Grounds
Whether you are contesting a will before or after probate is granted, you must have standing (i.e., a financial interest in the outcome of the contest) and valid grounds for contesting the will (e.g., undue influence, fraud, lack of capacity).
To determine standing, ask yourself: Would I benefit financially if this will is invalidated? If your inheritance would increase, you likely have standing. If your inheritance would decrease or be eliminated, you likely do not — and you may not have a strong incentive to pursue litigation.
Establishing valid legal grounds is more complex. You must allege specific, verifiable problems with the will, not just dissatisfaction with your inheritance.
Legally recognized grounds for contesting a will include:
- Undue influence: You suspect someone manipulated or exerted excessive pressure on the decedent to cause them to create, alter, or revoke their will.
- Fraud: You suspect someone intentionally deceived the decedent to create, alter, or revoke their will.
- Lack of capacity: You suspect the decedent lacked the mental competence required (called testamentary capacity) to create, alter, or revoke their will.
- Forgery: You suspect someone either falsified the decedent’s entire will or the signature on their will.
- Lack of due execution: You suspect the procedural requirements for creating, altering, or revoking a will were not followed.
- Mistake: You suspect the decedent signed their will without understanding what it was.
- Revocation: You suspect the admitted will had previously been revoked by the decedent.
If your reasons for challenging a will after probate fall outside these parameters, consult a probate attorney to determine whether your concerns rise to the level of a valid legal contest — and whether pursuing such a case would be in your best interest.
You Must Not Be a Party to an Existing Will Contest
If you are already involved in a will contest for the same will, you cannot initiate a second, separate contest after probate is granted, per Probate Code section 8270.
For example, if you previously filed a will contest petition alongside an objection to the probate petition that was denied by the court, you would not be allowed to file an entirely new will contest.
Similarly, if another beneficiary files a contest claiming the decedent lacked capacity, and you join their case, you cannot later file your own will contest, even if on separate grounds. Your claim must be added to the existing contest, or you must file your own contest prior to admission of the will to probate.
This rule is in place for a reason: to streamline the litigation. It’s unnecessarily inefficient and complicated for the court and parties to manage multiple proceedings about the same will when the matter can be addressed in one unified case.
You Were Unable to Join an Existing Will Contest Due to Improper Notice
If someone else has already filed a will contest, and you were properly notified but chose not to join, you generally cannot later initiate a new contest — even if you file within the 120-day window and have valid legal grounds, according to Probate Code section 8270.
That said, if you were not properly notified, then you may still be allowed to initiate a will contest of your own.
This restriction, similar to the one discussed above, is rooted in efficiency. When multiple parties are pursuing the same basic outcome of invalidating a will, it’s far more efficient and fair for all arguments to be heard in a single proceeding.
What Might Extend the Deadline for Contesting a Will After Probate?
There are limited circumstances that may extend the deadline for contesting a will after the standard 120-day window has lapsed.
However, it’s important to note that these exceptions generally only apply when the estate is still open and assets have not yet been distributed. Once probate has been closed and final distributions have been made, it’s usually not possible to contest a will.
You Were Not Timely Notified
The 120-day deadline to contest a will only begins once you have received proper and timely notice of the estate administration from the executor. This notice must be served at least 15 days before the initial probate hearing and must clearly inform you of your right to contest the will.
Although the failure to receive proper notice is not your fault, it’s still wise to be proactive. If you know a loved one has passed and believe you may be an estate beneficiary, but you haven’t received a probate notice, you can check with the county clerk’s office to see if the decedent’s will has been lodged with the court. If it has, it means the petition for probate has already been filed.
You may also wish to send a written request to the executor (or the petitioner) asking for notice of administration and a copy of the will. Having a written record of your request can serve as valuable evidence should a dispute arise.
Even if you believe you were not properly notified, it is best to file your contest within the 120-day window whenever possible to avoid issues with timeliness.
A New Will Has Been Discovered
Under Probate Code section 8226, if a new will is discovered after another has already been admitted to probate, the newly discovered will may still be admitted. You must file a petition to admit the new will within 120 days of the order admitting the earlier will to probate (or a finding of intestacy), or within 60 days of discovering the new will — whichever is later.
If the new will is admitted, a new 120-day window opens for interested parties to contest it. However, the new will cannot affect assets that have already been distributed; it can only be applied to undistributed assets and to resolve conflicts with previously admitted wills.
You Were a Minor or Lacked Capacity When the Will Was Admitted to Probate
California law does not allow minors or individuals who lack capacity to litigate on their own behalf unless they have a guardian or conservator.
Accordingly, Probate Code section 8270 extends the standard 120-day deadline for such individuals. If a person was a minor or mentally incompetent at the time the will was admitted to probate, and they did not have a guardian or conservator, they can file a contest at any time before the court enters the order for final distribution.
What Happens if You Contest a Will After Probate and Win?
If you successfully contest a will after probate has been granted, the court will revoke probate of the contested will. In essence, this resets the probate process.
At that point, if a prior valid will exists, it may be submitted for probate. Once admitted, a new 120-day window opens for contesting that will.
If no valid will exists, the court will declare the decedent to have died intestate, and the estate will be distributed according to California’s intestate succession laws, which are found in Probate Code sections 6400–6414. An administrator will be appointed based on the priority order outlined in Probate Code section 8461.
Many will contests settle at mediation, where a neutral third party helps the parties (who typically are accompanied by their attorneys) reach a resolution. However, if your case proceeds to trial and you prevail, you may be eligible to recover attorney’s fees and costs. Depending on the circumstances, these expenses may be paid from the estate or by the opposing party.
Takeaway: Can a Will Be Overturned After Probate — or Is It Too Late?
A will can usually be overturned after probate is granted — so long as the contest is filed within the 120-day window. Once probate has closed and assets have been fully distributed, however, it’s generally too late to challenge the will.
For this reason, it’s crucial to act quickly if you suspect a will is invalid. Even if you’re unsure, it’s wise to have an experienced attorney review the document. They can identify potential red flags — such as fraud, undue influence or lack of capacity — and guide you through the appropriate legal steps.
That said, it is often preferable to raise concerns before probate is granted. By filing an objection and contesting the will before the initial hearing, you may avoid the complexities and delays that can arise after probate begins.
Potential Drawbacks of Contesting a Will After Probate
Contesting a will after probate is not inherently problematic, but it does come with certain disadvantages. When possible, initiating your contest before the will is admitted can streamline the process and reduce costs and delays.
Our firm has helped many clients successfully contest wills after probate. Still, we recommend addressing issues as early as possible.
We go over some of the potential drawbacks of contesting a will after probate below.
More Complexity
By objecting to a will before it’s admitted, you may avoid the need for a full trial. However, once the will is admitted, a formal petition to revoke probate must be filed, and the process may involve extended litigation if the parties cannot resolve the matter through mediation.
Litigation can be stressful, time-consuming, and expensive. Addressing potential issues early may help you avoid unnecessary complications.
Higher Legal Costs
Litigation typically results in higher attorney’s fees, especially when the matter proceeds to discovery or trial. Filing an objection before probate is granted may require less legal work and, therefore, result in more predictable fees.
While legal costs vary depending on how a case unfolds, contests filed after probate tend to involve more court time, legal strategy, and document preparation. All of this will contribute to the total cost of the case.
Administrative Delays
If a will is successfully contested after probate has been granted, the original executor’s authority is revoked. This may disrupt the administration of the estate, especially if the executor had already begun handling estate assets.
In such cases, a new executor or administrator may need to be appointed, and earlier steps in the administration may have to be revisited. This can delay distributions, frustrate beneficiaries, and complicate the overall process.
Furthermore, if a new will is admitted, a new 120-day contest period begins, prolonging the uncertainty and placing distributions on hold.
Still have questions about contesting a will after probate?
California’s probate laws can be overwhelming to interpret — especially when you’re grieving the loss of a loved one and facing potential inheritance issues. Instead of navigating the legal system alone, consider reaching out to our knowledgeable team.
At Keystone Law Group, we regularly handle will contests and can advise you on whether you have standing and valid grounds to move forward. If you suspect a will is invalid, don’t wait. The clock may already be ticking.
Contact us today to learn how we can help protect your interests and secure the outcome you deserve.
