Call to schedule a strategy session at (408) 573-1122

Blog

What Do I Need To Know If I Go To Pobate Court In Santa Clara County?

If you are attending Probate Court in Santa Clara County, the courthouse is located at 191 North First Street in San Jose.  Parking can be difficult so allow plenty of time for parking.  There is a public parking garage near the courthouse if you are unable to find street parking.  If you are able to find street parking, it will be metered parking.  Once you make it to the court house, you will need to pass through security.  Take the elevator to the fourth floor.  The Probate Court is currently held in Department 12.  

On the wall opposite of the double doors to the courtroom is a bulletin board.  The day's calendar is hung on the bulletin board.  For each calendar session, there is a listing of the probate cases to be heard in that session.  On the sheet of paper hanging on the bulletin board for the 9:00 calendar, there will be a  listing of cases that includes the line number, time, case number, name of the case and the...

Continue Reading...

California No Contest Clauses: When Does A No Contest Clause Apply?

The current statute governing no-contest clauses contained in Probate Code Section 21310, et. seq. That section significantly limits the effect of a no contest clause.  Even if the document contains a no-contest clause, it only can be enforced in three specific scenarios.  Those scenarios are: 

  • A direct contest brought without probable cause;
  • A pleading to challenge the transfer of property on the grounds that it was not the transferor's property; and 
  • The filing of a creditor's claim or the prosecution based on the creditor's claim.

This only applies if the document you are challenging contains a no-contest clause. The effect of triggering a no contest clause is that you will be disinherited.  If you are challenging a will or trust that does not have a no-contest clause, then you will not be subject to disinheritance if you challenge the trust or will and lose.

A direct contest means you are challenging the validity of the trust or will or an...

Continue Reading...

What Is A No Contest Clause?

Many wills and trusts contain a no contest clause.  A common no contest clause states if you challenge the terms of the will or trust you will be disinherited.  If you believe their deceased loved one was preyed upon and the will or trust does not reflect their true intentions.  If you are faced with that situation, it is common to inquire what will happen if you contest the trust.  Perhaps you are being discouraged from contesting the trust or will because you are being told you will be disinherited.

It is important to recognize the no contest clause is meaningless if you have been disinherited.  If the will or trust gives everything to the person who took advantage of your mother or father, the no contest clause does not matter because you are not inheriting anything under the current will or trust.

The only way you will be able to receive your rightful inheritance is to file a will or trust contest.  The no contest clause applies to direct...

Continue Reading...

My Father Left His Estate To Someone Else. Do I Have A Right To Inherit My Father's Estate?

When Karin's and John's father passed away, they expected they would inherit their father's estate since they were his only children and he was not married when he passed away.  When they located his estate plan, they found that their father left his entire estate to someone who is not family.  They were shocked and surprised.  Is there a right to inherit from your parents?

Simply put, there is not a right to inherit from anyone.  If the decedent executed the estate plan with his or her own free will free of any undue influence and had the capacity to do so, a person can name any beneficiaries he or she chooses.  If Karin and John do not do anything, the estate plan is considered valid.  In order to set it aside, a petition must be filed in the court to set aside the trust or will.  This is called a trust or will contest.

The will or trust contest challenges the will or trust based on undue influence, fraud or lack of capacity.  To set aside...

Continue Reading...

How Long Do I Have to Contest a Will or Trust in California?

The timeframe to contest a will or trust in California is different for a will than it is for a trust.  It will depend upon whether the document you want to contest is a will or trust.

Contesting Wills

An action to contest a will cannot occur until the will is offered to be admitted to the Court by someone.  Once someone files the will with the Court, the Court can determine whether it is a will or not.  In California, it is not a will until the Court determines the writing to be a will.  The probate process proves up the will and allows the court to administer the will pursuant to the will's terms.  Because of this, there is nothing to contest until the will is offered to the Court and a petition to probate the will is filed.  If someone files a petition to probate the will, you need to file your will before the Court determines it is a valid will.  If you receive a petition for probate to have the will admitted, it is preferable to...

Continue Reading...

How Long Does a Trust or Will Contest Take in California?

Generally, it will take at least twelve to twenty-four months for a trust or will contest for the case to proceed to trial.  Of course, this amount of time can change depending upon the various factors of a specific case.  

Some of the factors in a case that may cause it to take longer are:

  • The availability of the court;
  • The time it takes to obtain evidence from third parties;
  • The availability of witnesses; and
  • Motions being filed by a party that the Court must decide before the case can proceed.

After a petition is filed in Court, the hearing is generally about 45-70 days later, depending upon the Court's schedule.  At the initial hearing, the Court determines if there are objections to the petition.  If there are no objections, the Court will grant the petition by signing an order.  If there is an objection by someone but the objection has not been filed in writing, the judge will usually set some deadlines.  The Court then sets the next...

Continue Reading...
Close

50% Complete

Two Step

Lorem ipsum dolor sit amet, consectetur adipiscing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.