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  • Writer's pictureDuisters Law, APC

Keeping it Simple Series: Revoking a Probate. The Why and How.

Here is the scenario: A family member filed a petition for probate to have decedent's Will admitted to probate and administered. They were supposed to give you notice because you are an heir of the decedent, but they did not. The court admitted the Will into probate but you know the Will is invalid, now what?

Sections 8270 - 8272 of the California Probate Code deal with this situation. Under 8270, you have 120 days after the purported Will was admitted to probate to file your petition for revocation. The petition must include your objections to the Will and why probate should be revoked.

There are a few important notice rules you must comply with to successfully bring a petition to revoke probate. Under Probate Code 8271 a Summons to appear in court must be issued and served on the appointed personal representative (the Executor) and the known heirs of the decedent. The Summons (form DE-125) is issued by the clerk of the court but you are responsible for serving it properly. Service must be personal, meaning the Summons must be physically served on the party, rather than by mail. You must also serve a copy of your petition. This can be quite a daunting task if there are many living heirs.

All parties served have 30 days to file a response to your revocation petition. If they fail to respond within 30 days, they are precluded from participating, but it will not preclude them for inheriting assets of the decedent (if they are rightfully entitled).

If you can successfully prove the Will should be revoked, the court shall revoke the probate of the will under Probate Code 8272. The person appointed as Executor ceases to act and a new petition for probate can be filed in order to continue proper administration of the decedent's estate.

Author: Duisers Law, APC - Family Law & Probate

Contributor: Vincenzo Giarratano, Esq. - Estate Planning attorney

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