Does the Estate Go to Intestate Succession

It’s a scenario I’ve seen too many times over my 35+ years practicing as both an Estate Planning Attorney and a CPA: Roger’s daughter finds a codicil, a formal amendment to his will, crumpled in a drawer. He’d been struggling with early dementia, and she fears the codicil was signed during a moment of confusion. She brings it to me, hoping to invalidate it, but… the original will is missing. And the statute of limitations is ticking.

The immediate concern, of course, is whether Roger’s estate will be distributed according to the terms of this questionable codicil, or revert to California’s default rules of intestate succession. Intestate succession determines how assets are distributed when someone dies without a valid will, and it’s rarely what people would have intentionally chosen. For Roger, this means his estate, including his business and family home, could end up divided among distant relatives he hadn’t seen in decades, rather than staying within his immediate family. The cost of inaction – letting the codicil stand or allowing intestate succession – could easily be hundreds of thousands of dollars.

What Happens When a Will Can’t Be Found?

California courts generally require the original will to be presented for probate. A copy can be admitted under certain circumstances, but it’s a much higher hurdle, demanding persuasive evidence of authenticity and the reason for the original’s absence. If the original will is simply lost, the court may accept a copy if you can demonstrate it wasn’t revoked and was properly executed. However, if there’s a suspicion of foul play – someone intentionally destroying the original to manipulate the inheritance – the burden of proof becomes significantly heavier. We’d immediately launch a thorough investigation, including searching Roger’s property, contacting his longtime friends and advisors, and potentially issuing subpoenas for financial records.

How Does Mental Capacity Affect a Will’s Validity?

Even if the original will is found, its validity can be challenged if the testator (the person making the will) lacked the mental capacity to understand what they were doing when it was signed. This is particularly common with seniors experiencing cognitive decline. But proving this is often complex. Probate Code § 6100.5 states that California uses a relatively low threshold for capacity. A person is considered of ‘sound mind’ unless they lacked the ability to understand the nature of the testamentary act, the nature of their property, or their relationship to living family members (or suffered from a specific delusion).

This doesn’t mean a diagnosis of dementia automatically invalidates a will. We’d need to gather medical records, deposition testimony from Roger’s doctors, and potentially testimony from friends and family who observed his behavior around the time the codicil was signed. Was he lucid on certain days but confused on others? Did he understand the implications of changing his estate plan? These are critical questions. As a CPA, I can also analyze financial transactions from that period for any unusual activity that might suggest undue influence or impaired judgment.

Could a No-Contest Clause Prevent a Challenge?

Many wills include a “No-Contest” clause, designed to discourage beneficiaries from challenging the document. However, Probate Code § 21311 provides a crucial safeguard: a “No-Contest” clause is only enforceable against a beneficiary if they bring a contest without probable cause. If the beneficiary has a reasonable basis for the challenge (e.g., strong evidence of forgery), the court will not strip them of their inheritance for fighting back.

Determining “probable cause” is fact-specific and requires careful legal analysis. If Roger’s daughter has legitimate concerns about the codicil’s authenticity or her father’s mental state, a challenge could be warranted, even with a No-Contest clause. The risk of losing her inheritance must be weighed against the potential loss of the estate to unintended beneficiaries.

What if a Caregiver Influenced the Testator?

Unfortunately, elder abuse and undue influence are all too common. If a caregiver was heavily involved in Roger’s life around the time the codicil was signed, we need to investigate whether they exerted improper control over his decisions. Probate Code § 21380 creates a presumption of undue influence if a gift is made to a care custodian of a dependent adult. The burden of proof shifts to the caregiver to prove they did not coerce the senior. If they fail, they are disinherited and often liable for attorney fees.

This is where my CPA background becomes particularly valuable. I can meticulously trace financial transactions, identify any unexplained gifts to the caregiver, and uncover patterns of control or manipulation.

Who Has the Legal Standing to Contest a Will?

Not just anyone can challenge a will. Probate Code § 48 requires you to be an ‘interested person’—meaning you would financially benefit if the current will is overturned (e.g., a child disinherited by a new will, or a beneficiary named in a previous version). A distant relative with no prior connection to Roger would likely lack standing, whereas his daughter, as a potential heir, would have a clear legal right to contest the codicil.

Furthermore, even if you have standing, you must act promptly. As mentioned earlier, the 120-day window under Probate Code § 8270 for challenging a will after it is admitted to probate is strict. Once the will is admitted to probate, interested parties have a strict 120-day window to file a petition to revoke probate. If you miss this deadline, the will is generally locked in stone, even if it was forged or signed under duress.

What separates an efficient California probate process from a drawn-out conflict over authority and assets?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

To initiate the case correctly, you must connect the filing steps through how to file for probate, confirm the location using proper probate venue, and ensure no interested parties are missed by strictly following notice of petition rules.

A stable probate administration outcome usually follows from clarity, consistency, and readiness for court review, especially when multiple stakeholders and competing interpretations are involved. When documentation supports enforcement and timelines are respected, families are less likely to face preventable escalation.

Verified Authority on California Will Contests

• The 120-Day Statute of Limitations: California Probate Code § 8270
  Time is the enemy in a will contest. Under Section 8270, an interested person may petition the court to revoke the probate of a will, but this petition MUST be filed within 120 days after the will is admitted. Missing this deadline is usually fatal to the case.
• Mental Competency Standard: California Probate Code § 6100.5 (Unsound Mind)
  This statute defines exactly what “mental incompetency” means in probate. It is not just general forgetfulness; the contestant must prove the deceased did not understand the nature of the testamentary act, could not recollect their property, or was suffering from a specific hallucination or delusion that dictated the will’s terms.
• Presumption of Undue Influence (Caregivers): California Probate Code § 21380
  To protect vulnerable seniors, California law automatically presumes undue influence if a will leaves assets to a paid care custodian or the lawyer who drafted the instrument. This shifts the heavy burden of proof onto the accused to prove their innocence.
• No-Contest Clause Enforceability: California Probate Code § 21311
  Many wills contain threats to disinherit anyone who challenges them. This statute limits the power of those clauses. A beneficiary cannot be penalized for a contest if the court finds they had “probable cause” to file the lawsuit.
• Standing to Contest: California Probate Code § 48 (Interested Person)
  Not everyone can sue. To contest a will, you must qualify as an “interested person”—typically an heir who would inherit under intestate succession (if there were no will) or a beneficiary named in a prior valid will.
• Financial Elder Abuse Remedies: California Probate Code § 859 (Double Damages)
  Will contests often overlap with elder abuse claims. If the court finds that a person used undue influence, fraud, or bad faith to take assets (or change a will) to the detriment of the estate, they can be liable for twice the value of the property taken, plus attorney fees.