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?
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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.
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