How to contest a will in probate court

When you write a will, be specific on how you want your assets and property distributed and to whom after death. Because, when you pass away, your estate may have to go through the probate process.

Your will can be legally contested in probate court. Contesting a will means that someone wants to make a formal objection to the terms and/or validity of said will. Some of the most common reasons why people contest a will include:

  • Questions regarding the mental state of the person who created the will
  • Claims of undue influence
  • Suspected fraud or forgery
  • Improper preparation or execution

Understanding how the process of contesting a will works is important if you are a beneficiary of an individual’s estate or you have concerns that the will you’ve created may one day be contested due to disagreements between heirs, family members, beneficiaries, or others not included in the will.

Understanding inheritance laws

Any “interested party” can contest a will. An interested party is defined as any person or business that could stand to gain or lose something if the will is successfully contested and proved to be invalid.

Generally speaking, interested persons may include: 

  • Children
  • Grandchildren
  • Spouses
  • Siblings
  • Parents
  • Aunts and uncles
  • Business partners
  • Anyone or any entity named as your heir or beneficiary

Minors usually cannot contest the terms or validity of a will, but an executor or guardian could challenge it on their behalf.

For many, creating a will as part of an estate plan is a way to ensure that their final wishes are honored after their death and that their legacy will help their loved ones.

Therefore, it’s important to follow some general guidelines to leave behind a legally valid will. It should be:

  • Free of any outside interference or manipulation by someone with a financial interest in the will
  • Drafted by an individual who is of legal adult age and mentally competent
  • Drafted in accordance with the individual’s state laws regarding wills
  • Properly signed, witnessed, and recorded or notarized if required by state law

Don’t go it alone

To challenge a will in probate court, you need to file a petition. The petition is to notify the court and the estate of the individual in question that you’re contesting it. Your case could settle or could go to a hearing. Others could be contesting the will or it could have no-contest clauses which would make contesting the will more difficult.

By working with an estate planning attorney you can minimize the chances of your own will being challenged. Consider creating a trust along with a will; assets transferred to a trust aren’t subject to the probate process. If you are headed for court in the San Diego area, contact Probate Attorney David W. Foley. Whether you are documenting your last wishes or administering another’s we are here to help.