Probate Litigation Attorneys in Southern California

The word "probate" is often equated to a lengthy, expensive, and sometimes contentious process to settle the estate of someone who has just passed away, with or without a will. It’s not unusual for heirs and would-be beneficiaries to feel shorted, left out of a will or trust entirely, or to disagree with the probate court’s decision in an intestate case, which occurs when the person dies without any legal estate planning document.  

As a result, legal actions can occur, and the probate court is the battleground for those contesting the will, trust, or even a court-ordered intestate ruling when there is no will. Contesting a will, trust, or court decision represents a high legal bar. You will need to rely on legal counsel experienced in probate litigation.  

If you are involved in a probate dispute in Southern California and wish to challenge a will or trust, contact the probate litigation attorneys at the Bochnewich Law Offices. Probate is mostly an administrative process, but if someone believes the will is invalid or the trust has become impractical or outlived its purpose, then either document can be contested in probate court.   

We proudly serve clients throughout Southern California in the counties of Los Angeles, San Bernardino, Riverside, Orange, and San Diego. 

Probate in California

In California, whenever someone dies with a will or without a will, it goes through probate. When dying without a will, the process is known as dying intestate (without a testament.) When there is a will, the probate process is used to prove the validity of the will; and, if valid, to implement the wishes of the testator (creator of the will) in terms of distributing assets to beneficiaries.   

When there is no will, probate will settle the estate—debts, taxes, and other obligations—just as if there were a will, but the probate court will distribute assets according to the state’s Law of Intestate Succession. In both situations, an executor will handle the administration of the estate. When there is a will, the executor, or personal representative, will be named by the testator in advance. If there is no will, the court will appoint an executor.  

If the decedent had created a trust, the trustee of that legal instrument will handle the settling of the estate and the distribution of assets mostly outside of probate court supervision. However, the court still has authority over the process. In other words, the probate court will hear contests over a trust just as it would over a will or even an intestate decision. 

Common Reasons for Disputing a Will or Trust

If you come out on the short end of the distribution side of a will or trust, or perhaps you were left out altogether, that generally isn’t enough to mount a challenge unless you can find another reason. That being said, some of the legitimate reasons for contesting a will, and perhaps a trust as well, involve the following:  

• THE MENTAL CAPACITY OF THE CREATOR: You must be at least 18 and of sound mind to create a will or trust. If the decedent did so without the proper mental capacity or under the influence of drugs or alcohol, the document can be challenged.  

• UNDUE INFLUENCE: Perhaps someone, a son, daughter, lover, or someone else, coerced the creator into the decisions they made.  

• INVALIDITY OF THE WILL: A will in California must be handwritten or typed out, signed by the creator, and witnessed by two others who are not named in the will. A trust also must be properly validated.  

• TOO MANY WILL VERSIONS: There may be questions about whether the will being probated is the latest one.  

• FRAUD: Perhaps the testator of the will was presented with a fraudulent version of what they wanted and signed it anyway.  

• FIDUCIARY IRRESPONSIBILITY OR SELF-DEALING: The executor of an estate under a will, or the trustee under a trust, may be acting irresponsibility, incompetently, or worse, taking advantage of the role for self-enrichment. 

Intestate Succession

You, as an heir, under an intestate probate proceeding, may need to show the court that you are in line to share in the inheritance. You may even have to challenge others who try to show they stand in line in front of you. Intestate succession in California begins with the spouse and children, who have priority. If you are a spouse or offspring of the decedent, you may need to step forward by identifying yourself and proving your heirship to the court.   

Probate Litigation Process

The first thing to note if you wish to challenge a will or trust is that you must have legal standing. Legal standing means that you fall into one of three categories:  

• you have been named a beneficiary in the will or trust,  

• an heir under California’s definition of intestate succession; and,  

• a creditor of the decedent. 

If you have legal standing, you can file a petition with the court to contest the will or trust, and if the court finds that the supporting evidence you submit warrants it, a hearing will be scheduled. The hearing will summon the individuals involved, and the court will render a decision on the challenge.  

The California Probate Code Section 8252 summarizes the challenge: “The contestants of the will have the burden of proof of lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.”