What the law says
A will has no effect until someone asks the probate court to admit it, and that is where a will contest happens. Before the court admits the will, any interested person can object. After the court admits it, the will can still be challenged by a petition to revoke probate, but only within 120 days of the order admitting it under Probate Code section 8270.
The grounds are the same either way. The person who signed the will must have had testamentary capacity, which Probate Code section 6100.5 defines in plain terms: they had to understand what a will does, know the nature and extent of their property, and remember who their family was. The will must not have been the product of undue influence as defined in Welfare and Institutions Code section 15610.70, or of fraud, duress, or menace. And it must have been signed and witnessed the way the Probate Code requires, unless it is a handwritten will that qualifies under its own rules.
As with trusts, a gift to the person who drafted the will or to a paid care custodian is presumed to be the product of fraud or undue influence under Probate Code section 21380.
What you can do
Find out whether a probate case has been opened. Probate filings are public, and Santa Clara County Superior Court's records can be searched online. If a petition to probate the will has been filed, the hearing date is your first deadline. If none has been filed, you can file one yourself with an earlier will, or ask the court to appoint an administrator.
Gather the earlier wills. A will contest is stronger when there is a prior document that shows what the person wanted for years. Then gather the circumstances of the new one: who drafted it, who witnessed it, where it was signed, and what the person's health was that month.
A contest is filed as an objection to the petition for probate, or as a petition to revoke probate if the will has already been admitted. It can be paired with a financial elder abuse claim and, where property has already changed hands, a Probate Code section 850 petition.
How fast you need to move
If someone has filed a petition to probate the will, you need to object before or at the hearing. Once the will is admitted, you have 120 days to petition to revoke probate. Miss that and the will stands, no matter how good the evidence is.
Other deadlines run alongside. Claims against the person who died must generally be filed within a year of death under Code of Civil Procedure section 366.2, and a claim that the person promised to leave you something runs one year from death under section 366.3. Financial elder abuse claims run four years from discovery.
How we handle these cases in Santa Clara County
We check the court file first, because the probate calendar sets the schedule. Then we read every will in the sequence and build the timeline: what the person said for years, what changed, and who was around when it changed.
Will contests turn on witnesses more than most trust cases do. The attesting witnesses, the drafting lawyer, the doctors, the neighbors. We interview them early and lock in what they remember. Medical and bank records are subpoenaed at the same time, and we use Legion, the AI litigation platform our founder co-founded, to go through them quickly.
Will contests in Santa Clara County are heard in the probate court in San Jose. Many settle once the evidence is in front of the other side. The rest are tried to the probate judge.
Common situations
- A new will appeared after the funeral and nobody had heard of it. Ask who drafted it and who witnessed it. A will drafted by a beneficiary's friend and witnessed by strangers gets a hard look.
- The will was signed in the hospital or a care facility. The chart for that day, the medications, and the nursing notes usually decide the capacity question.
- One child was cut out and the will does not say why. Disinheriting a child is legal. Doing it in a will signed when the parent could not remember that child's name is not.
- There is a will, but most of the assets were in joint accounts or a trust. A will only controls what goes through probate. Property held in joint tenancy, in a trust, or with a beneficiary designation passes outside the will and may need its own claim.
Am I too late?
How long do I have?
General information, not legal advice. Confirm your dates with a lawyer.
Questions people ask about will contests
How long do I have to contest a will in California?
Before the will is admitted to probate, you can object at the hearing on the petition. After admission, a petition to revoke probate must be filed within 120 days (Probate Code section 8270). Deadlines depend on your facts; confirm yours with a lawyer.
Can I contest a will if I was left out entirely?
Yes, if you would inherit under an earlier will or under California’s intestacy rules if this will fails. Being left out is not by itself a ground; the question is whether the will is valid.
What makes a will invalid?
Lack of testamentary capacity, undue influence, fraud, forgery, duress, mistake, or a signing that did not meet the formalities. A handwritten will has its own rules.
The will was signed at the hospital. Does that matter?
It often does. Timing, who arranged the signing, who benefited, and the medical chart for that day are the core of most capacity and undue influence cases.
This page is general information, not legal advice, and reading it does not make you a client of Rothrock Legal. No attorney-client relationship exists until an engagement letter is signed. Deadlines depend on your facts and change; confirm yours with a lawyer.
