Many cases of trust and probate litigation arise when people who thought they might inherit something from a friend or relative find out only after that person's death that they were left out of the will. But if they aren't named in the will, how do they find out? The answer is in the California probate court's requirement of notice.
If a will exists, and the estate must go through probate, the person who has possession of the will, known as the custodian, is legally required to take the original will to the probate court clerk's office within 30 days of the person's death. The custodian must also send a copy of the will to the person who is named as the executor, if there is one. If the will does not name an executor, or the named person cannot be found, the custodian must send it to a person who is named as a beneficiary in the will.
The next step is for someone, known as the petitioner, to begin the probate court process by filing a Petition for Probate in the county where the deceased person lived. The county clerk then sets a hearing date. Once this is accomplished, the petitioner must give notice of the hearing to all surviving family members and anyone else who may have a right to part of the estate. This requirement of notifying family members applies even to family members who were left out of the will. The petitioner cannot be the person who mails this notice; rather, a person who is not a party to the case must be the one to mail out the notices. The petitioner must also arrange to publish the notice in a general circulation newspaper.
Interested parties can file a form known as a Request for Special Notice, which gives them the right to more information from the person who is managing the estate.
Interested parties are generally people who would ordinarily expect to be named in a will. They may include children, siblings or other relations to the deceased. Depending on their familial or marital relationship to the deceased, these people may have the right to challenge the will, in an action that is generally known as a will contest.
Probate litigation is legally complex and often emotionally difficult for families, but it can be important in the interests of justice. Those who are thinking about challenging a will can speak to a probate litigation attorney about their options.