California Estate Litigation Attorney: What to Know Before You Act

Estate litigation in California is a court fight over a trust, a will or a probate estate: whether the document is valid, whether a trustee or executor has handled the property honestly, and who receives what. It is heard in the Superior Court of California for the county involved, and much of it runs on strict Probate Code deadlines.

Most people facing this kind of dispute did not go looking for it. A parent has died, and a trustee's notice arrives that does not match what the family was told. A sibling took over the accounts and stopped answering questions. A will or amendment signed in the last months of a life leaves out someone who was always included. Or the reader is the trustee or executor, now accused of something they believe they did not do. Whichever side of the table, the questions are the same: what the law says, which deadline applies, and what a court can actually order.

This page walks through those questions in order: the kinds of disputes, trust contests, will contests, trustee duties and remedies, and recovery of property that was taken.

What Estate Litigation in California Actually Covers

"Estate litigation" means contested proceedings in California Superior Court over the validity, administration or distribution of a trust or a probate estate. The word that matters is contested. Someone disputes a document, a decision or a transfer, and a judge is asked to resolve it.

That separates this work from two neighbors. Estate planning is the drafting, signing and funding of trusts and wills while the person is alive. Routine administration is the process of gathering assets, paying bills and distributing property when nobody objects. This site covers neither, except where a dispute requires mentioning them. It covers what happens when the people involved no longer agree.

The core dispute categories in California trust litigation and contested probate include:

• Trust contests, challenging whether a trust or an amendment is valid.
• Will contests, challenging whether a will should be admitted to probate or should stay admitted.
• Trustee and executor misconduct, including self-dealing, failure to account and failure to distribute.
• Breach of fiduciary duty claims, seeking money or other redress for losses caused by a fiduciary. A fiduciary is a person legally required to act in someone else's interest rather than their own.
• Removal of a trustee or personal representative (the executor or administrator of a probate estate).
• Recovery of wrongfully taken property, from a house to bank accounts to a family business.
• No-contest clause disputes, over whether a challenge forfeits a beneficiary's share.

The California Probate Code governs most of these proceedings. Trust and estate cases in a county are heard by the Superior Court of California for that county, usually in its probate division. The court's general information is available through the California Courts website.

Trust Contests and the Deadlines That Control Them

A trust contest is a legal challenge to the validity of a trust instrument or a provision of it. The usual grounds are that the person who made the trust (the settlor) lacked capacity, was subject to undue influence, was defrauded, or that a signature or amendment is forged. Undue influence takes its meaning from Probate Code section 86, which adopts a definition found elsewhere in California law.

The clock usually starts with a document, not a death. Under Probate Code section 16061.7(a), a trustee must serve a "notification by the trustee" in several events, including when a revocable trust becomes irrevocable because of a settlor's death and whenever the trustee of an irrevocable trust changes. The list in the statute is longer than those two.

Probate Code section 16061.8 then sets the deadline for a person served with the notification that follows a settlor's death. That person cannot bring an action to contest the trust more than:

• 120 days from the date the trustee's notification is served on them, or
• 60 days from the date a copy of the terms of the trust is delivered to them during that 120-day period,

whichever is later. The period does not run from the date of death, and it does not run from the day the trust became irrevocable. It runs from service of the notification, or from delivery of the trust terms if that happens inside the 120 days and produces a later date. A reader who has received a trustee's notice, or has asked for and received a copy of the trust, has a date to work from. Further detail on contesting a trust is on a separate page of this site.

Some gifts start out under suspicion. Under Probate Code section 21380(a), a provision making a donative transfer (a gift) to certain people is presumed to be the product of fraud or undue influence. Those people are the person who drafted the instrument; a person who transcribed it, or caused it to be transcribed, while in a fiduciary relationship with the transferor; and a care custodian of a transferor who is a dependent adult, but only if the instrument was signed while the care custodian was providing services or within 90 days before or after that period. This does not mean every gift to a caregiver, relative or helper is presumed invalid. The presumption applies only to the categories the statute describes.

The presumption shifts the burden of proof. The person receiving the gift may rebut it with clear and convincing evidence, except that it is conclusive, meaning it cannot be rebutted, for a transfer to the drafter and to the people section 21380(c) associates with the drafter. A beneficiary who tries and fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees.

No-contest clauses frighten many beneficiaries into silence, often more than the law supports. A no-contest clause is a provision saying a beneficiary who challenges the document loses their gift. Under Probate Code section 21311(a), it may be enforced only against a direct contest brought without probable cause, and, only if the clause expressly says so, against a pleading challenging a transfer on the ground that the property was not the transferor's, or against a creditor's claim. Probable cause exists under section 21311(b) if, at the time of filing, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood the requested relief will be granted after an opportunity for further investigation or discovery. A clause does not automatically disinherit anyone who challenges a trust or will.

Will Contests and Probate Proceedings in California

Wills raise many of the same questions as trusts, but they move through a different procedure, because a will takes effect only when a court admits it to probate.

Capacity is the most common battleground. Under Probate Code section 6100.5, a person is not mentally competent to make a will if, at the time of making it, they lack sufficient capacity to understand the nature of the act, to understand and recollect the nature and situation of their property, or to remember and understand their relations to living descendants, spouse and parents and to those whose interests the will affects. The statute contains other grounds as well. The test is applied at the moment of signing. A diagnosis, including dementia, does not by itself make a will invalid; the question is what the person could understand when the will was made.

Timing then splits a will contest into two paths.

Before the will is admitted. Under Probate Code section 8250, the contestant files an objection to probate of the will. A summons is then issued and served, with a copy of the objection, on the people entitled to notice, and those summoned must file a written pleading in response within 30 days after service.

After the will is admitted. Under Probate Code section 8270, within 120 days after a will is admitted to probate, an interested person may petition to revoke the probate, with written grounds of opposition. That window is not open to a party to an earlier will contest, or to a person who had actual notice of a contest in time to join it. A person who was a minor, or incompetent without a guardian or conservator, when the will was admitted may petition at any time before the order for final distribution.

These proceedings are heard by the Superior Court of California for the county where the probate is pending.

A word on titles. A probate attorney may handle routine administration as well as disputes. An estate litigation attorney concentrates on contested proceedings: will contests, trust contests, removal and fiduciary claims. The roles overlap, but they are not the same, and the difference is whether there is a fight.

Trustee Duties, Breach of Fiduciary Duty, and Remedies

A trustee holds legal title to trust property but must manage it for the beneficiaries. When a beneficiary says a trustee has crossed a line, or a trustee says the accusation is unfair, the dispute usually comes back to a short list of statutory duties.

Loyalty. Under Probate Code section 16004(a), a trustee must not use or deal with trust property for the trustee's own profit or for any purpose unconnected with the trust, and must not take part in any transaction in which the trustee has an interest adverse to the beneficiary. Living rent-free in the trust's house, buying a trust asset, or steering business to oneself are typical examples of conduct examined under this duty. Under section 16004(c), a transaction between the trustee and a beneficiary by which the trustee obtains an advantage from the beneficiary is presumed to violate the trustee's duties. That presumption affects the burden of proof and does not apply to an agreement about the trustee's hiring or compensation.

Information. A trustee must keep the beneficiaries reasonably informed of the trust and its administration (Probate Code section 16060) and, except as section 16069 provides, must report requested information relevant to a beneficiary's interest on reasonable request (section 16061).

Accounting. Not every beneficiary is owed an annual account. Under Probate Code section 16062, generally the duty to account at least annually, at termination and on a change of trustee runs to each beneficiary to whom income or principal is required, or authorized in the trustee's discretion, to be currently distributed, subject to exceptions stated in that section and elsewhere in the Probate Code. Section 16062 itself voids a trust instrument's waiver of the account only as to certain sole trustees. Separately, under other Probate Code provisions rather than section 16062, even where the trust instrument or a beneficiary's writing waives the account, the court may generally compel the trustee to account upon a showing that it is reasonably likely a material breach of the trust has occurred.

When the duties are not met, the court is the next stop. Under Probate Code section 17200(a), generally a trustee or beneficiary may petition the court concerning the internal affairs of the trust or to determine whether it exists. The purposes listed in section 17200(b) are examples, not a complete list. A Probate Code 17200 petition may ask the court to compel information if the trustee has failed to provide it within 60 days after a reasonable written request and the beneficiary has not received it within the six months before the request. A petition to compel an account is available on the same pattern: the trustee has failed to submit a requested account within 60 days after written request, and no account has been made in the six months before the request (section 17200(b)(7)).

If a trustee commits or threatens to commit a breach of trust, Probate Code section 16420(a) lets a beneficiary or cotrustee bring a proceeding to compel the trustee to perform; to enjoin the breach; to compel redress by payment of money or otherwise; to appoint a receiver or temporary trustee; to remove the trustee; subject to section 18100, to set aside the trustee's acts; to reduce or deny compensation; subject to section 18100, to impose an equitable lien or constructive trust (a court order treating property as held for the rightful owner); and, subject to section 18100, to trace and recover property wrongfully disposed of. Under section 16420(b), those remedies do not prevent resort to any other appropriate remedy.

Removal. Under Probate Code section 15642(a), a trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee or beneficiary under section 17200. The grounds in section 15642(b) include a breach of trust, insolvency or unfitness, hostility or lack of cooperation among cotrustees that impairs administration, failing or declining to act, and excessive compensation; the list is not exclusive.

Surcharge. A surcharge is a money judgment against the trustee personally. Under Probate Code section 16440(a), a trustee who commits a breach is chargeable, as appropriate, with any resulting loss or depreciation in value with interest, any profit the trustee made through the breach with interest, or any profit that would have accrued to the trust. It is not automatic: under section 16440(b), the court may excuse a trustee who acted reasonably and in good faith under the circumstances as known to the trustee, in whole or in part, if that would be equitable. For a trustee facing accusations, this is often the center of the case.

Fees. If the trust does not specify compensation, the trustee is entitled to reasonable compensation (Probate Code section 15681). A trustee may not charge an increased fee without first giving at least 60 days' written notice to the beneficiaries section 15686(b) lists, and a section 17200 petition served before that period ends holds the increase back until the court orders otherwise or the petition is dismissed (section 15686(c)).

The limitations period. Under Probate Code section 16460(a), a breach of trust claim is barred unless a proceeding is commenced within three years after the beneficiary receives an interim or final account or other written report that adequately discloses the claim; or, where no such account or report discloses it or none is received, within three years after the beneficiary discovered or reasonably should have discovered the subject of the claim. An account "adequately discloses" a claim if it gives enough information that the beneficiary knows of it or reasonably should have inquired. Not every disagreement with a trustee's judgment is a breach, and the documents a trustee has already sent can matter a great deal to which branch applies.

Recovery of Wrongfully Taken Estate or Trust Property

Sometimes the dispute is not about a document at all, but about property that left the estate or trust and never came back: a house deeded over shortly before death, an account emptied, jewelry or vehicles that disappeared.

California's Probate Code includes a part that allows petitions to recover property belonging to a trust or a decedent's estate, and Probate Code section 859 attaches a significant consequence to certain findings in those actions. If a court finds that a person has in bad faith wrongfully taken, concealed or disposed of property belonging to a trust or a decedent's estate (among others), or has taken, concealed or disposed of it by undue influence in bad faith or through elder or dependent adult financial abuse, the person is liable for twice the value of the property recovered by an action under that part. In addition, except as otherwise required by law, the court may in its discretion award reasonable attorney's fees and costs against that person. Neither the doubled amount nor fees is automatic. Both depend on the finding the court must make, and the fees remain discretionary even then. A person who received property honestly and in good faith is in a different position from one the court finds acted wrongfully and in bad faith.

The same concerns can arise inside a probate estate. Under Probate Code section 8502, a personal representative may be removed if they have wasted, embezzled, mismanaged or committed a fraud on the estate, or are about to do so; are incapable of properly executing the duties or not qualified; have wrongfully neglected the estate or long neglected to act; if removal is otherwise necessary to protect the estate or interested persons; or for any other cause provided by statute.

In trust matters, the court's toolkit is broad. Under Probate Code section 17206, the court may make any orders and take any action necessary or proper to dispose of the matters presented by a petition, including appointing a temporary trustee to administer the trust in whole or in part. Where assets are at risk while a case is pending, that power is often the first thing the parties argue about.

What This Site Covers

This site is about disputes only. It does not deal with estate planning, drafting or amending a trust, drafting a will, or administering an estate or trust when nobody disagrees. If the question is how to set up a plan, rather than how to resolve a fight over one, this is not the page for it.

Discussing a Trust, Will or Estate Dispute

Estate disputes turn on particulars that a general page cannot weigh: the date a trustee's notification was served, whether a copy of the trust terms followed, what an account actually disclosed, who drafted a late amendment, and when a deed or withdrawal was made. A consultation with an attorney is where those documents, dates and conduct can be looked at against the deadlines and remedies described above, whether the reader is a beneficiary, an heir, or a trustee or executor responding to accusations. For readers whose question is about planning rather than a dispute, this site is not the right resource.

To raise a dispute like this with an attorney, contact California Trust Litigation Lawyers to request a consultation about your dispute.