4 situations that should prompt you to contest a trust or will in California

Though it is rare, contesting a will in California is something that should be done when one of these red flags arises.

As noted in California's law, survivors are able to contest a trust or will under certain circumstances. Someone can challenge the document's legitimacy as soon as the person passes away. However, the state's probate code specifically notes that if a trust or will has already been admitted to probate, there is a 120-day window in which the objection must be filed.

Further, only interested parties may challenge the trust or will, including the following:

  • Any beneficiaries who are named in the trust or will
  • A deceased person's heirs
  • Creditors to which the decedent owed money

There are some situations that should raise suspicion surrounding a trust or will. California law requires petitioners to have a legitimate reason to contest the document, and those reasons could include the following:

1. Fraud or undue influence

It is a sad fact that people try to take advantage of the elderly, incapacitated or otherwise vulnerable. Someone who places undue influence on another person creating his or her trust or will actually violates the law. Anyone who suspects that this may be the case can contest the validity of the trust or will citing fraud or undue influence. Forgery is also a legally accepted grounds for a challenge.

2. Capacity

Legally, anyone who is 18 or older can create a trust or will. People younger than that are considered to lack the capacity to do so. Adults, on the other hand, are presumed to be of sound mind unless it can be proven otherwise. Therefore, if someone has dementia or a substance abuse issue, it is possible to call into question the person's capacity to create a legally binding document.

3. Violating provisions

For a trust or will to be valid in California, it must be written or typed and signed by the maker when two witnesses are present. Each of the witnesses must also sign the trust or will. Further, neither of those witnesses may be someone who is named in the document. If any of these provisions is violated, the trust or will may not be considered valid.

4. Multiple wills

Lastly, there is the possibility that someone has more than one trust or will. This happens when people move into a new state or attempt to update their estate plan through drafting a new document. In many cases, the courts will consider the new trust or will to be the legal document, and the old trust or will is not.

Challenging a trust or will is rare. FindLaw estimates that 99 percent of trusts or wills go through probate without incident. However, when there is an issue, survivors should not wait to raise the red flag. People who have concerns about this topic should speak with an estate litigation attorney in California.