Last updated: October 2026
To contest a will in California, an interested person files written objections in probate court before the will is admitted, or petitions to revoke the probate within 120 days after it is admitted. The contest must rest on a recognized ground, such as improper signing, lack of capacity, undue influence, fraud, duress, mistake or revocation. A probate judge, not a jury, decides the case. Bay Legal represents people bringing and defending will contests throughout California.
Will contest: a probate court proceeding that challenges whether a document is the valid will of the person who died, in whole or in part.
Who can contest a will in California?
An “interested person” can contest a will. Probate Code section 48 includes heirs, beneficiaries and others whose property rights the proceeding may affect. In practice, that usually means someone whose share would grow if the will failed, such as an heir under the intestacy rules or a beneficiary of an earlier will.
California has no procedure for contesting a will while the person who made it is alive. A will contest starts only after death, in the probate case. A person named as executor has no duty to defend the will until the court appoints them (section 8250).
What are the grounds to contest a will?
Under Probate Code section 8252, the person offering the will must prove it was properly signed and witnessed. The person contesting it must prove any other ground. For how a valid will is made in the first place, see wills.
Improper signing or witnessing
A typed will must be signed by the person making it and by two witnesses who were present at the same time (section 6110). If the witnessing was defective, the will can still be valid if clear and convincing evidence shows the person intended it as their will. A handwritten will is valid without witnesses if the signature and key terms are in the person’s own handwriting (section 6111).
Lack of capacity
Under section 6100.5, a person lacks capacity to make a will if, when signing, they could not understand what a will does, the nature of their property, or their relationships with close family. A delusion that changed how they left their property also defeats capacity. A diagnosis such as dementia is not enough by itself (section 811).
Undue influence
Undue influence is excessive persuasion that overcomes a person’s free will and produces an unfair result (section 86; Welfare and Institutions Code section 15610.70). Courts weigh the person’s vulnerability, the influencer’s authority, the tactics used and the fairness of the result. An unfair result alone is not enough.
Two presumptions can shift the burden to the beneficiary. Under section 21380, a gift to the person who drafted the will, to a care custodian of a dependent adult within set time limits, or to certain people connected to them, is presumed to result from fraud or undue influence. Under case law, a presumption also arises when someone in a confidential relationship actively helped procure the will and benefits unduly (Rice v. Clark (2002) 28 Cal.4th 89).
Fraud, duress, mistake and revocation
A will can also fail if the person was deceived or coerced into signing it, or if it was revoked. A will is revoked by a later will or by being destroyed with intent to revoke (section 6120). If the original was last in the person’s possession and cannot be found, the law presumes it was destroyed to revoke it (section 6124). That presumption can be overcome with evidence.
How long do you have to contest a will?
There are two windows. Before the will is admitted, an interested person can object at or before the hearing on the petition for probate. After admission, most interested persons have 120 days to petition to revoke the probate under section 8270. Once that time passes without a contest, the admission is conclusive (section 8226).
| Objection before admission | Petition to revoke after admission | |
|---|---|---|
| When to file | At or before the hearing on the petition for probate | Within 120 days after the will is admitted |
| Who can file | Any interested person | Any interested person, except parties to an earlier contest or those with actual notice of it in time to join |
| Exception | — | A person who was a minor or incompetent without a guardian or conservator can file any time before final distribution |
| Response | Summons; written response due 30 days after service | Summons; written response due 30 days after service |
| Statute | Prob. Code §§ 1043, 8250 | Prob. Code §§ 8270, 8271 |
How does a will contest work?
- Get the will and calendar the deadline. Confirm whether a petition for probate has been filed and when the hearing is set, or when the will was admitted.
- Assess the grounds and any no-contest clause. Medical records, prior wills and the circumstances of signing usually decide whether a contest has probable cause.
- File the objection or petition. There is no statewide Judicial Council form for a will objection, so it is drafted on pleading paper and filed in the probate department of the county where the decedent lived.
- Serve a summons. The contest is served with a Summons (Probate), form DE-125, and responding parties have 30 days to file a written response.
- Discovery. Civil discovery rules apply (section 1000), including subpoenas for medical records and depositions of the drafting attorney and witnesses.
- Settlement. Courts often order or encourage mediation or a settlement conference in contested matters. See mediation.
- Trial. A judge decides contested facts (sections 825 and 8252). Each subscribing witness must be produced if available (section 8253). The court admits or rejects the will, in whole or in part (section 8254).
Will a no-contest clause cost me my inheritance?
Not if you have probable cause. Under Probate Code section 21311, a no-contest clause can be enforced against a direct contest only if it was filed without probable cause. Probable cause means the facts known when you file would lead a reasonable person to believe the relief is reasonably likely to be granted after investigation. A clause reaches property-ownership challenges or creditor claims only if it says so expressly, and courts construe it strictly (section 21312).
What happens if a will contest succeeds?
The court can reject the whole will or only the invalid parts. If the rejected will was never valid, it never revoked an earlier will, which may then be offered for probate. If no valid will remains, the estate passes to heirs under the intestacy rules (section 6400). A gift that fails under section 21380 passes as if that beneficiary had died first (section 21386).
Who pays the legal fees in a will contest?
Each side usually pays its own attorney’s fees (Code of Civil Procedure section 1021). The court may award costs (section 1002). There are exceptions: a beneficiary who fails to rebut the section 21380 presumption pays all costs, including attorney’s fees, and a court can order fees for bad-faith tactics (Code of Civil Procedure section 128.5). An executor’s attorney may be paid from the estate for defending the will, with court approval, but a defense before admission is compensated only if it succeeds (California Rules of Court, rule 7.703).
Bay Legal bills will contests at an hourly rate and explains the arrangement in writing before work begins.
Frequently Asked Questions
Can I contest a will before the person dies?
No. California has no procedure for contesting a will while the person who made it is alive. A will contest happens only in the probate case after death. If you are worried that someone is being pressured or exploited now, other options may apply, such as a conservatorship or a financial elder abuse claim. Talk to an attorney about which fits.
What is the deadline to contest a will in California?
It depends on timing. Before the will is admitted, you can object at or before the hearing on the petition for probate. After it is admitted, most interested persons have 120 days to petition to revoke the probate under Probate Code section 8270. A person who was a minor or incompetent without a guardian or conservator can file until final distribution.
Is a handwritten will valid in California?
Yes, if the signature and the material provisions are in the person’s own handwriting. It does not need witnesses. A missing date does not invalidate it by itself. Under Probate Code section 6111, the date matters only if it creates doubt about which of two inconsistent wills controls, or about whether the person had capacity when signing.
Who decides a will contest, a judge or a jury?
A judge. Probate Code section 825 provides that there is no right to a jury trial in probate proceedings unless the code expressly allows one, and section 8252 directs the court to decide contested facts about a will’s validity. Many contests settle before trial, often through mediation or a court settlement conference.
Does contesting a will trigger a no-contest clause?
Only if you contest without probable cause. Under Probate Code section 21311, a clause is enforced against a direct contest only when the facts known at filing would not lead a reasonable person to expect a reasonable likelihood of success. Have the clause and your evidence reviewed before you file, because the clause is read strictly.
Related Questions
What is a petition to revoke probate?
It is the way to contest a will after the court has admitted it. Under Probate Code section 8270, most interested persons must file it within 120 days after admission, and it must include written objections stating the grounds.
What is a certificate of independent review?
It is a certificate signed by an independent attorney who counseled the person privately about a gift. Under Probate Code section 21384, it removes the statutory presumption of fraud or undue influence that would otherwise apply to certain gifts.
Does divorce revoke a will in California?
It revokes gifts and appointments to the former spouse, unless the will says otherwise. Under Probate Code section 6122, the rest of the will stays in effect. A legal separation that does not end the marriage does not have this effect.
What if the original will can’t be found?
If the will was last in the person’s possession, the law presumes they destroyed it to revoke it (Probate Code section 6124). That presumption can be overcome with evidence, and a lost will can still be probated if its terms are proved.
About the attorney
Ryan R. Wong handles probate and trust litigation at Bay Legal, including will and trust contests, petitions to compel an accounting or remove a trustee, and petitions to recover property under Probate Code section 850. Ryan has practiced in the probate courts of Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. Will contests are part of Bay Legal’s probate litigation work within its Probate & Trusts practice.
Talk to a California will contest attorney
If a will has been filed for probate, or was admitted in the last 120 days, check your deadline first. To discuss a will contest, call the office nearest you or email intake.
Bay Legal, P.C. — serving California statewide
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This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.