Contesting a will means to legally challenge the legitimacy of a will in probate court. How to win a will contest in Los Angeles is another matter. We understand that when a family member or loved one passes away, the pain of that loss can be magnified if uncertainty exists as to how they truly wanted their final wishes to be carried out, especially when their last will and testament does not reflect what you know their wishes to be. All too often, a potential heir or beneficiary thinks they should not, or cannot, successfully challenge a will in Los Angeles probate court. Parties associated with the deceased are understandably concerned about alienating other loved ones, or appearing opportunistic and self-serving.
Yet, as we have seen in the numerous cases we’ve won for Los Angeles clients, those who have good reason to believe they were the intended recipients of the deceased’s assets are often exactly right. We advise our clients not to simply take it on faith that a will is legitimate if it seems to run contrary to what its creator suggested when they were alive. When elderly loved ones are the victim of fraud, undue influence, manipulative actors, or forgery, do not delay in contacting a probate attorney right away to get to the truth of the matter. You should never feel ashamed about ensuring that your loved one’s intentions are being respected and acted upon appropriately. Here’s how to contest a will — and win.
What is the meaning of contesting a will?
To contest a will means to legally challenge the legitimacy of a will in probate court. There are several different reasons for contesting a will — many of which involve the mental incapacitation, incapacity, or physical incapacity of the person making the will. Separately, the elderly and infirm are prone to medical conditions which may make them more susceptible to undue influence by those seeking to benefit from their impaired judgment. We often see cases where a will was written amended just prior to death, which always raises suspicion and concerns. If a will, amended will, or codicil has very different terms than its previous versions, and disinherits certain beneficiaries while enriching others disproportionately, it may be a sign that an interloper pressured the deceased into making changes at a time when they weren’t mentally equipped to do so, or that the changes they made were not of their own free will. Oftentimes, the elderly and infirm are so dependent upon others for support that they will simply do whatever a key caregiver asks of them, including changing their will.
What is a last will and testament?
A last will and testament is a legal document that takes effect upon the death of the person who created it. It specifies what is to be done with a person’s assets after they pass away. A last will and testament dictates how and to whom the deceased’s funds, personal property, and real estate will be distributed. This may be done by asset, by percentage, and with other conditional or timed increments. The last will and testament also will designate a successor, an executor, to handle the deceased’s affairs, such as custody of dependents, or management powers over outside accounts or joint interests.
How do I contest a will and win?
The quickest and most honest answer is to find the best Los Angeles probate litigation attorney who has experience working in the Los Angeles Superior Court Probate Division. Look for a Los Angeles probate litigation law firm with a proven track record of winning will contests in that court. Don’t be shy about asking them about their track record and what reasonable expectations should be for your case. If you’d like to contact a Los Angeles probate litigation attorney at RMO for a free consultation, click here.
Beyond that, collect all the relevant documentation you can, act in a timely fashion (ideally, as soon as a loved one has passed away), try to keep a cool head throughout, and rely on your probate litigation attorney’s experience and guidance.
10 Steps to Win a Will Contest in Los Angeles
Here are some general guidelines and milestones:
- Determine whether you are someone who can contest the will. If you are not a family member or creditor, and have never been designated as a beneficiary in any version of the will, understand that you likely do not have standing – i.e. the ability – to contest it..
- Obtain a copy of the disputed will and all former or different versions of it.
- Review the will and any former versions of it to see what changes have been made and how they affect your and others;
- Gather any documentation suggesting that the deceased was not of sound mind, was unduly influenced, or the victim of fraud or forgery when creating the version of the will that is disadvantageous to you.
- Act quickly. As soon as a loved one passes away, get a free consultation with the best Los Angeles probate attorney practicing in the Los Angeles Superior Court Probate Division.
- Listen to your lawyer’s honest assessment of your case, and decide if the potential financial and emotional costs of litigation justify the potential gain.
- Consider mediation in lieu of litigation. This is almost always the more cost-effective and lower-stress route.
- If your lawyer believes you have a winning claim, but no settlement agreement can be reached, be prepared to proceed with litigation.
- In any case — though it may be tempting — try not to let emotions get the better of you. It is best to let your lawyer do the talking, Do not engage in any behavior that could hurt your case.
- Be prepared for a long and possibly costly battle. You may well be entitled to your claim, and you may well win in the end, but understand that it may take anywhere from several months to several years for the case to finally get resolved in your favor.
What are reasons to contest a will?
The four main grounds for contesting a will are:
- State-mandated legal formalities, such as the presence of witnesses, were not adhered to at the will’s signing.
- The person creating the will was mentally incapacitated when they made it.
- The person creating the will did so because they were coerced or unduly influenced by another interested party who stood to benefit. This, in conjunction with incapacity, is far and away the most common reason for successfully contesting a will.
- The will was forged or otherwise created by fraudulent means.
How long do you have to contest a will?
In Los Angeles and California, a person has 120 days to contest the will after probate is opened. However, if you receive notice that someone has filed a petition to have the will admitted, it is best to attend the hearing and object to the will’s admission before the court can legitimize it in the first place. If you hire a Los Angeles probate litigation attorney, they will attend the hearing for you at the Los Angeles Superior Court Probate Division.
Additionally, if you receive notice that someone has filed a petition erroneously claiming that the deceased died intestate — meaning, without a will — then you need to file any existing wills with the court right away to refute that claim.
Can I contest a will and win, even if there’s a no contest clause?
Most states do not enforce no contest clauses in a will, meaning that they are simply ignored by the courts. California is one of the few states where no contest clauses are enforced. For practical purposes, however, a no contest clause will usually not bar a will contest from being heard by the courts if there is reasonable cause to object to the will’s legitimacy on other grounds. These are sticky issues, however, and something that should be gone over in detail with a probate litigation attorney before taking any action.
Who can contest a will?
Any interested party with standing may contest a will in California. An interested party is anyone who stands to gain or lose something in the litigation at hand. Usually, interested parties are limited to family members and named beneficiaries in the contested version of the will or prior versions of it. The California Probate Code defines “interested persons” as children, heirs, devisees, spouses, creditors, or any others having a property right, or claim against, the estate being administered.”
It is important to note that simply because you expected to inherit something from the estate doesn’t mean you have standing to contest the will. A rule of thumb is that you have to have an existing stake in the litigation — usually by blood, marriage, or property.
Can you contest a will if you’re not in it?
Yes, as long as you fall under the above definition of an interested party. Unfortunately, many people believe that they cannot challenge a will because they were not named in it at all, when in reality, this is the very reason many people bring these cases and win. It is an unfortunately common occurrence that an elderly person with diminished mental capacity is coerced or pressured into amending a will to unjustly benefit the manipulating party, while disinheriting others. If previous versions of a will clearly demonstrate the deceased’s intent to pass on a portion of their assets to their children, for example, but a near-death amendment was made that leaves everything to a spouse or caregiver, it is absolutely reasonable to question whether that decision was genuine and enforceable. Courts raise a proverbial eyebrow in such cases, often seeing an opportunistic and unjustly enriched party for exactly what who they are.
It is also worth noting that if you have nothing, you have nothing to lose. A consultation with any reputable probate law firm is usually free, as is ours at RMO. I urge everyone to sit down with a will contest attorney and review the facts of your case as soon as a questionable will or codicil surfaces. We never take cases we don’t think we can win, so the worst-case scenario is that you spend nothing to rest assured there is nothing else you could have done, but the best-case scenario is that you recover the assets and property that your deceased loved one truly wanted you to have.
Can nieces and nephews contest a will?
Yes. It happens all the time. Many will creators may not have children of their own, but nieces and nephews are just as important and beloved by them. Will contests are not necessarily limited to one’s own children. Any interested party may contest the will. A niece or nephew can absolutely be considered an interested party depending on the facts. We have even seen cases where the deceased had their own children, but a niece or nephew inherited a greater share of assets in the will because they had a closer relationship with their aunt or uncle during life.
Note, however, that most states, generally, intestate succession laws do not provide for nieces and nephews to receive an inheritance unless numerous other heirs have passed. An inheritance likely would need to be based on what the decedent intended for the niece or nephew per the will, or an earlier version of the will, or promises to make a will that were relied upon but never kept.
What is intestate succession?
Intestate succession in California occurs when a person dies without a will or trust in place. The deceased person may have independently-owned funds, assets, or other property remaining after they have passed away, but there is no legal document in place to dictate how they intended for such assets to be distributed among heirs.
As it pertains to will contests, what you need to beware of is another party claiming to the courts that a loved one died intestate, when in fact, there was a will, or vice versa. If this happens, you need to contact a probate litigation attorney immediately so they can help you file the will, or contest an illegitimate will, in court.
In cases involving intestate succession, your particular state’s laws will govern who gets what, and in what order. For a detailed overview of how intestate succession works in California, see our article, The Guide To Intestate Succession In California.
How long does it take to contest a will?
How long it takes to contest a will depends on a variety of factors. In cases where there isn’t much personal animosity between potential heirs, and the contesting party obviously has a very strong claim supported by documented evidence and witnesses, we have won very large settlements for clients in a mere matter of months. In other cases where the stakes are very high, the situation is emotionally volatile, and neither party is willing to budge, we have had cases take years to finally get resolved by a judge in court.
Any experienced and ethical probate litigation attorney will be upfront and transparent about the potential personal and financial costs associated with contesting a will. After all, it is difficult for any potential heir to feel like they’ve “won” if the estate assets they fought to claim have been mostly depleted by the cost of the battle and they are left emotionally drained. That is why our first priority in these cases is to understand your goals, your true goals, and build a strategy around those goals to get you a good result sooner. This not only limits your legal fees, it limits your personal stress, and hopefully any ill will between parties who would otherwise wish to stay on good terms with one another.
Contesting a Will in California
Contesting a will is very common in California — likely due to the fact that it tends to be a high-net-worth state. A recent study showed that roughly 1.5% of all wills in California are contested before probate administration. While that may seem like a small percentage, the raw number of contests is quite high. So, if you are considering contesting a will in California, know that you are by no means alone.
California Probate Code § 8003 states that immediately upon the death of a will’s creator, any interested party may contest the will by objecting to another’s petition to probate it. A hearing regarding the objection will be scheduled for no sooner than 15 days from the time the objection is filed. Even if a will has already been admitted by the court, potential contestants still have 120 days from the date probate was opened to challenge the legitimacy of the will. In either case, you need to pay attention to your timelines.
If you think you may need to contest a will in California, contact a will litigation lawyer as soon as the deceased has passed, so that you can stay on top of any legal proceedings initiated by other parties attempting to legitimize an otherwise illegitimate will.
When should I contact a will contest lawyer?
You should contact a will contest lawyer as soon as you suspect:
- That a will was created or amended when the deceased was mentally incompetent or otherwise infirm;
- That a will was created or amended due to unfair pressure put on the deceased by a party seeking to benefit themselves at the expense of others;
- That multiple or previous versions of a will exist, and one version benefits you more than another;
- That someone is trying to claim that no will exists, even though it does;
- That someone is trying to claim a fraudulent will controls, when it does not;
- That you have wrongfully been left out of a will entirely
- That a will should have made appropriate arrangements for you because you were promised a benefit and our relied on that promise;
- That there was a simple error or accidental omission made in drafting the will that render it invalid.
Do I need a will contest lawyer in Los Angeles?
We recommend finding an experienced will contest lawyer familiar with the county probate court in the county where your loved one passed away. For example, if the will’s executor lives in Miami, Florida, but the deceased died in Los Angeles, California, we recommend working with a probate litigation attorney in Los Angeles. A Los Angeles probate lawyer will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.
Or call us at (424) 320-9444
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About RMO Lawyers
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com