5 minute read

Competing Petitions in Probate: How They Can Affect Your Estate

After submitting a Will and petition for probate, the process is set into motion. What if an error or additional information is discovered? Find out how it works.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

Did you know that more than one Will can be filed for probate under the same estate? This action can be taken by the same person, or multiple individuals. This creates two or more competing petitions for the purpose of probating an estate. This guide discusses what a competing petition is, why this can happen, and how this can affect your estate. We also provide some tips on how to properly file a competing petition if you need to do so yourself.

What is a competing petition in probate?

When it comes to estate settlement, there are usually multiple players and emotions can run high. A loved one has passed away, and the heirs want to make sure they get what’s rightfully theirs (their inheritance) in a timely manner. 

Frustrations can ensue when the settlement is belabored with issues during an already lengthy and complex probate process. To make matters worse, family conflict or conflict with creditors or even executors can turn into lengthy, expensive, heated litigation. 

If an interested party feels that they have additional or even conflicting information related to an estate, they can legally file a competing petition that challenges the currently pending petition. (Of course, they can’t get a Will overturned just because they don’t agree with its terms. They have to have a sound legal basis to file a Will contest.)

For example, maybe the original probate petition claims that the decedent didn’t leave behind a Will. Then, a family member discovers a Will after the fact. Alternatively, maybe they find a paper copy of a more recent, revised version of the Will. Here, they will need to file a competing petition to challenge the current petition and ultimately get it canceled.

To be clear, a competing petition does not necessarily get filed in a hostile environment. The probate process is tricky to navigate, and it could simply be an issue of human error or the discovery of new information. 

Will contest lawsuit: 3 steps

The process of contesting a Will (using a competing petition) requires a few steps. Ultimately, the correct sets of legal paperwork must be filed such that the probate court can make a ruling and determine the outcome. 

Here is an overview of the steps:

1. A petition to admit a will to probate is filed

In most states, a Will is not considered legally valid until it is formally admitted to probate. While you can take all steps necessary to ensure that your Will is legally valid, it’s not actually validated until the court probates it. Thus, you must submit the Will along with a Petition for Letters Testamentary. This is essentially a request for the court to review, validate and admit the Will for probate. Under this petition, you are required to provide facts pertaining to the Will you are submitting for admittance. While rules may vary from state to state, you can typically still file a Petition for Probate (Letters Testamentary) even if another party has already filed one. This creates two or more competing petitions. It does not matter whose petition was filed first, as long as they are both filed before the first Will is admitted to probate.

2. An objection is made

Next, a competing petition can be made to the probating of a Will. The formal filing process varies between states. For example, in California, Probate Code Section 8250 states that a separate filing can be made, called an “objection to probate of Will.” This objection is the competing petition once filed. 

When filing the objection or competing petition, you must provide a clear explanation as to why you are objecting to the first petition.  You must provide clear arguments as to why the first petition should be dislodged. All new documents must be filed as if you were setting up a brand new probate. 

In most cases, the first petition would be moved to the competing petition’s court date. The objection and court summons is served to each and every individual named in the Will. 

3. The Will contest is reviewed

At the trial, the individual who filed the initial petition must prove that the Will was executed in a valid manner, per that state’s laws. Once this is established, then the individual who filed the competing petition (the contestant) must provide the legal grounds upon which they believe the first Will is invalid. Examples of valid reasons to dislodge a Will is lack of the Testator’s mental capacity, undue influence, or even fraud. The onus is on the contestant to conduct discovery for evidence and present the facts at trial. Once the contest is reviewed, then the probate judge will make a decision.

How to file a competing petition: tips

When it comes to filing a competing petition, attention to detail is key. While you may have a solid case, your petition will not be accepted or approved if it is not filed properly.

When filing your competing petition, treat it as though no other petition exists and that it is brand new. This means you must submit all new documents and fees as required by the original petition. Once you file your petition, double-check to ensure that the original petition is moved to the new court date. Typically, competing petitions are resolved on the court date. However, if the issue is more complex (such as accusations of undue influence or fraud, rather than simple error), then mediation may be required. Be wary that this can prolong the probate process and incur additional fees. If mediation does not work, then the issue is escalated to a trial. At trial, the judge will determine which of the competing petitions will be approved.

Here are some tips to keep in mind:

  • Typically, counties require that all related petitions go under the same case number.

  • Conduct discovery for your petition such that the first petition does not get approved. In other words, your competing petition must have some legal basis.

  • Prepare the competing petition as if it is a brand new petition. However, be sure to label your petition as “Competing.”

  • Similarly, you still need to publish a notice, file documents, and pay fees in full.

  • Verify that the first petition is moved to the new court date.

  • Be prepared for the issue to escalate to mediation, followed by a trial to determine which petition is accepted. This can prolong the process and incur additional costs. Therefore, be sure that your competing petition has a legal basis. 

Create a bulletproof Will of your own

Competing petitions in probate takes place when there is an issue regarding the validity of a Will. When a first petition for probate is filed, a secondary petition can also be filed, as long as it is done so before the first petition is admitted to probate. Therefore, timing is of the essence.

Note that competing petitions aren’t necessarily fraught with strife. For instance, it could be a simple issue of a family member discovering a later, more updated version of a Will, or finding an error in the first petition. These types of issues can typically be resolved easily and administratively.

However, competing petitions can be escalated to legal mediation or even a trial if the validity of the Will is called into question and foul play is suspected. Perhaps an heir believes they were left out of the list of beneficiaries because they suspect that the Testator was under undue influence. 

If you wish to file a competing petition, be sure to gather enough evidence and that you have sound legal basis for doing so. 

The key method of avoiding competing petitions altogether is to ensure that your Will is bulletproof and is legally valid in your state. By partnering with Trust & Will, you can have peace of mind knowing that you will have a valid, up-to-date Will on hand. 

Additionally, if you are having any difficulty navigating the probate process, we’re here to help! At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help.  Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.

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