Can a Will Be Changed After Probate Starts in California?
If you’ve recently lost a loved one and are involved in the probate process, you might be wondering whether a will can still be changed even after the probate process has started. For example, maybe you have noticed an error or an omission in the will and are wondering if this can be fixed. Understanding the rules governing will alterations in California and probate is crucial to prevent confusion and ensure your loved one’s estate is handled correctly.
So, can a will be changed after probate has begun in California? Once probate starts in California, a will generally cannot be changed or revoked. In California, only the person who made the will (the testator) can modify or revoke it, and only while they are alive. Read on to learn more!
California Law on Modifying Wills
According to California Probate Code section 6120, a will can only be altered or revoked by the testator before they pass away. This can happen in one of two ways:
- Drafting a new will or codicil: A new document that is signed, dated, and witnessed as per state law can revoke a previous will or modify specific provisions.
- Physically destroying the will: The testator can tear, burn, or otherwise obliterate the document, provided such actions are undertaken with the intention of revoking it.
However, the law allows another person to destroy a will as long as they do so in the testator’s presence and under their direction.
After the testator passes away, the personal representative cannot alter the will. The executor’s or administrator’s role is to follow the instructions as they are written in the will, regardless of their personal opinions or other people’s opinions.
What if a New Will Pops Up After Probate Has Started?
Sometimes, after the probate process has begun, a new will that was previously unknown may appear. In such situations, families may wonder whether the new will cancels the old one. So, does a new will cancel an old will? In California, the court might accept a valid, properly executed new will, which can replace the earlier will. However, if the new document does not meet the legal standards, for example, if it does not contain the testator’s signature or witnesses, the court will probably turn it down.
A crucial thing to note is that in most cases, probate proceeds according to the original will admitted to court. Situations where probate courts accept a new will later are the exception and not the rule.
Contesting a Will After Probate Begins
While a will cannot be changed after probate has started, interested parties can contest it in court. Contesting a will involves a legal process to potentially invalidate the entire will or specific provisions. However, to challenge a will in California, you must have a valid ground. Some of the common grounds for contesting a will include:
- Fraud
- Forgery
- Lack of testamentary capacity
- Undue influence
- Improper execution
However, there are strict time limits for contesting a will after probate starts. According to California Probate Code section 8270, you generally have 120 days after a will is admitted to probate to file a will contest in court.
Contact The Probate Guy
If you are involved in the California probate process and have questions about a will or potential challenges, contact the experienced California probate attorney, Robert L. Cohen – The Probate Guy – today to schedule a telephonic consultation.
Southern California Probate Lawyer Serving Orange, Riverside, Anaheim, Whittier & Beyond.
Source:
leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6120.&lawCode=PROB
