Q: What if successor waited 38 days, not 40 days since the death of the descendent. Is it still valid? Or can it be contest
Can it be contested by a beneficiary who was also an heir?
A:
Under California law, the waiting period for a successor to file for probate after the death of the decedent is 30 days, not 40 days. So if the successor waited 38 days to file, they are still within the legal timeframe.
California Probate Code Section 8200 states:
"(a) Unless a petition for probate of the will is earlier filed, the custodian of a will shall, within 30 days after having knowledge of the death of the testator, do both of the following:
(1) Deliver the will to the clerk of the superior court of the county in which the estate of the decedent may be administered.
(2) Mail a copy of the will to the person named in the will as executor, if the person's whereabouts is known to the custodian, or if not, to a person named in the will as a beneficiary, if the person's whereabouts is known to the custodian."
Therefore, filing for probate 38 days after the decedent's death would not provide grounds for a beneficiary or heir to contest the will or the probate filing on the basis of the timeline alone. They would need to have other legal grounds to contest the will or probate process.
However, if there are concerns, it's always best for the successor and beneficiaries to consult with a probate attorney to ensure proper handling of the estate per California law.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
