How Long Do You Have to Contest a Will or Trust?

A will is a legal document that instructs how and to whom a person’s assets should be distributed after they die. A will goes into effect upon the death of the testator (the creator of the will); however, distributions cannot be made to beneficiaries until the will has passed through probate, a court-supervised process during which the will is reviewed to confirm its validity.

If you have inspected the decedent’s will and wish to contest it, the deadline for filing your will contest will depend on whether or not the the document has been admitted to probate. Generally, a will contest can be filed at any time prior to admission of a will to probate. If the decedent’s will has already been admitted to probate, the statute of limitations on contesting a will is generally 120 days from the date of admission. 

Ideally, you should start the process of contesting a will as soon as you are notified that someone has filed a petition to open probate. You will need to file a formal objection to the probate petition, which is best accomplished with help from a legal professional (since California does not make available a formal objection form to fill out). By taking this preliminary step, you may be able to stop the admission of the will to probate before the court begins the process of legitimizing it. A successful objection could amount to lower legal costs than if you were to bring a will contest. 

If the petition for probate has already been granted, you will not have the option to file a formal objection. Rather, you will have to bring a will contest and petition to revoke probate of the decedent’s will within the designated time limit to contest a will, which is 120 days from the date the probate petition was approved.

Navigating this process can be complicated and confusing for people who are not familiar with probate law. As such, hiring an experienced will contest attorney is a worthwhile investment. 

There is a reason why the state imposes a strict statute of limitations on contesting a will, and it is so estate beneficiaries can receive their distributions in a timely manner. Even if a will is not being challenged, the probate process can take close to a year, if not longer. A will contest can prolong the process even more. 

In general, it is best to contest the validity of a will before the will is admitted to probate and before distributions are made to beneficiaries under the will. For one, beneficiaries may have spent, sold or invested their inheritances, which can make those assets difficult to recover. Next, it is possible that some or all of the beneficiaries may be incentivized to oppose your will contest, and they can use their distributions from the estate to fund their defense of the will. Finally, it is important to consider the emotional costs of such a decision, as will contests can drag on for years, creating rifts among the family members involved.

So, while in extremely rare circumstances, contesting a will after distribution may be possible, it will be an uphill and costly battle. Before making the decision to embark on it, it would be best to consult with an experienced estate lawyer.

A will can be contested after probate is granted, although that is not typically when most will contests take place. The contest has to be filed within the 120-day time limit to contest a will. As previously mentioned, it is ideal to file a formal objection to the admission of the will to probate before the probate petition is granted, but it is nevertheless possible to contest a will after probate has been granted as well. The only catch is that will contest costs will likely be higher and beneficiaries may not receive their inheritances as quickly.

It is important to note, however, that if an interested party seeking to contest a will had actual notice of another person’s will contest in time to have joined the contest, yet failed to do so, they may be barred from contesting the will after it is admitted to probate pursuant to Probate Code Section 8270 (a).  This is yet another reason why it is critical to consult with a will contest attorney as quickly as possible following a decedent’s death, particularly if you are contemplating filing a will contest.

Similar to will contests, trust contests are time-barred because of how difficult it is to recover assets that have already been distributed to beneficiaries. It is essential to act quickly to file your contest with help from a trust contest attorney before the 120-day statute of limitations for contesting a trust in California has elapsed. 

That being said, under rare circumstances, it might be possible to contest a trust after distributions have been made. For example, if the trustee neglected to serve a Notification by Trustee, or if distributions had been made within the 120-day period, it may still be possible to initiate a trust contest. 

A good rule of thumb is to work with a probate attorney as soon as you are notified by the trustee to determine the validity of the trust, regardless of whether or not you plan to bring a contest. This way, you will have plenty of time to decide whether bringing a contest is something you want to do. 

While the statute of limitations on contesting a will or trust is important to keep in mind, it is also important to determine early in the process whether you have standing to bring a contest. Standing basically means that you have a financial stake in the outcome of the matter. If, for example, invalidating the will or trust would mean you receive a greater inheritance, you have standing. If invalidating a will or trust would either not affect your inheritance or reduce your inheritance, you do not have standing.

If you have questions about your standing to contest a will or trust, get in touch with a probate attorney as soon as possible to ensure that the statute of limitations on contesting a will or trust does not elapse. 

As touched on earlier, there are only a few acceptable grounds for contesting a will or trust. Suppose you are seeking to bring a will contest because you don’t like the provisions of the document or believe you are deserving of a greater inheritance. In this case, it’s not just unlikely that you can contest the will and win, but it is unlikely that the court will grant the contest in the first place. 

Will and trust no-contest clauses seek to penalize beneficiaries who contest or defend a will or trust without probable cause by disqualifying them from receiving any money or property from the estate or trust if their claim is unsuccessful. 

No-contest clauses may sound ominous, but they should not stop you from filing a contest if you believe the will or trust to be invalid, and especially if you have received nothing under a new version of a will or trust. They, likewise, should not discourage you from defending a contest that is based on groundless claims. Furthermore, no-contest clauses are hard to enforce, thanks in part to laws in California that went into effect in 2011. Still, a no-contest clause can potentially eliminate your inheritance (as it did for these beneficiaries who forfeited $10 million for contesting a trust without having probable cause), so it is best to consult with a probate attorney before challenging a will or trust with a no-contest clause.