Petition to Probate a Will in California

Estate of Black (1943) 56 Cal.App.2d 796, the court held that a document filed after the admission of a will to probate constituted an attack on the jurisdiction of the probate court. However, that document was not a petition to probate a different will; rather, it was in the nature of a will contest. Having been filed after the order for probate had become final, the document was ineffective, and the court had no jurisdiction to entertain it. (Id. at pp. 797-799.) Estate of Sanders (1985) 40 Cal.3d 607 holds that a final order for probate may be set aside for extrinsic fraud. It does not involve a petition to probate a will that was not the subject of the original order for probate. (Id. at pp. 610-613, 613-614.) Estate of Madsen (1939) 31 Cal.App.2d 240 is to the same effect, and also does not involve a petition to probate a will that was not the subject of the original order for probate. (Id. at pp. 241-242, 244.) Similarly, State v. McGlynn (1862) 20 Cal. 233, involves the time limits for the state to contest an order for probate of a will in escheat proceedings; it does not involve a petition to probate a different will. Probate Code section 8007, subdivision (a) provides: "Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked." T he order is conclusive, however, only as to the jurisdictional facts, i.e., the date and place of the decedent's death; that the decedent was domiciled in this state or left property in this state at the time of death; and the publication of notice. ( 8005, subd. (b)(1), 8006.) It does not preclude a petition to probate a later-discovered will, and such a petition is not a challenge to the court's jurisdiction over the decedent's estate. On the contrary, the Probate Code clearly authorizes petitions to probate wills discovered after the appointment of an executor or administrator. Section 8504 expressly provides that an administrator appointed on grounds of intestacy, as was the case here, is to be removed from office upon the later admission to probate of a will. ( 8504, subd. (a).) And, section 8226(c) provides that the proponent of a will can petition for probate of the will after the issuance of an order admitting another will to probate or determining the decedent to be intestate. ( 8226(c)(1).)