California Inheritance Dispute Attorney: What to Know Before You Act

An inheritance in California can be challenged or enforced in court. A will can be contested, a trust can be contested, a trustee or executor can be asked to account, compelled to act, removed or held liable, and wrongfully taken property can be recovered. Each path has its own rules and, in several cases, short statutory deadlines.

Most people facing an inheritance dispute in California arrive at it sideways. A parent has died, and the trust that everyone assumed would divide things evenly turns out to have been amended in the last year of life. A sibling who moved in to help now controls the house and the accounts and answers questions with silence. An executor has held an estate open for a long time without distributing anything. Or the reader is the trustee or executor, and a brother or sister is now accusing them of taking what was not theirs. Whichever side of the table the reader is on, the questions are the same: what the law actually says, which deadline applies, and what a court in California can and cannot do about it.

This page walks through those questions in order: the kinds of disputes, how will and trust contests work, what trustees and executors owe, what courts can order, and what is useful to have in hand before speaking with an attorney.

What an Inheritance Dispute in California Actually Involves

Inheritance disputes in California generally fall into four categories, and locating a situation in the right one matters because each has different rules, different evidence and different timing.

Will contests. A will contest is a challenge to whether a will is valid, usually because the person who signed it lacked the mental capacity to make a will, was subjected to undue influence, or because the document was the product of fraud or forgery.

Trust contests. A trust contest is a challenge to the validity of a trust or of a particular trust amendment. Because so many California families hold their homes and accounts in a revocable living trust, the late-life trust amendment is one of the most common documents at the center of these cases.

Trustee or executor misconduct. These disputes accept that the documents are valid but challenge how the person in charge is behaving. A trustee manages a trust; an executor, called a personal representative in the Probate Code, manages a probate estate. Typical complaints include refusing to account, refusing to distribute, self-dealing, mixing trust money with personal money, or simply doing nothing.

Recovery of wrongfully taken property. Sometimes the core problem is that property left the trust or estate — before or after death — and ended up with someone who should not have it. These cases focus on getting the property, or its value, back.

All four are governed by the California Probate Code, and all four are heard in the Superior Court of California for the relevant county, typically in its probate division. A single family dispute can involve more than one category at once: a trust contest over an amendment, for instance, can sit alongside a claim that the trustee has been using trust property for personal benefit.

This site is about disputes only. It does not cover estate planning, drafting or funding a trust, or the routine administration of a trust or estate when no one disagrees about anything.

Contesting a Will in California

Capacity is measured on the day the will was signed. Under Probate Code section 6100.5, a person is not mentally competent to make a will if, at the time of making it, the person lacked sufficient mental capacity to understand the nature of the testamentary act, to understand and recollect the nature and situation of his or her property, or to remember and understand his or her relations to living descendants, spouse and parents and those whose interests the will affects. The section also describes other circumstances bearing on competence. The practical point is timing: a diagnosis such as dementia does not, by itself, make a will invalid. The question is the person's actual capacity when the will was made, and evidence from that period — medical records, the observations of people present, the circumstances of signing — tends to carry the most weight.

Undue influence is the other common ground. Probate Code section 86 gives the term the meaning set out in the Welfare and Institutions Code, and the courts apply that statutory definition alongside the common law. Whether influence crossed the legal line depends on facts, which is why these cases are often built on documents, timing and witness accounts rather than on the will itself.

A contest filed before the will is admitted follows the procedure in Probate Code section 8250. The person challenging the will (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 persons entitled to notice, and the summons directs those persons to file a written pleading in response within 30 days after service of the summons.

A challenge after the will is admitted takes a different form. Under Probate Code section 8270(a), within 120 days after a will is admitted to probate, an interested person may petition the court to revoke the probate of the will, setting out written grounds of opposition. That window is not open to everyone: it excludes a party to a will contest and a person who had actual notice of a will contest in time to have joined in it. Section 8270(b) provides a separate exception — a person who was a minor, or who was incompetent and had no guardian or conservator, when the will was admitted may petition to revoke the probate at any time before entry of an order for final distribution.

For a family member who only learns of a new will after the hearing has passed, that 120-day period is the figure that most often decides whether a challenge is still possible.

Contesting a Trust in California

Trust contests carry their own deadline, and it is frequently misstated. The rules for contesting a trust in California start with a document the trustee is required to send.

The trustee's notification. Probate Code section 16061.7(a) requires the trustee to serve a written notification in several events, including when a revocable trust, or any portion of it, becomes irrevocable because of the death of one or more of the settlors (the people who created the trust), whenever there is a change of trustee of an irrevocable trust, and in certain situations involving a power of appointment retained by a settlor. That list is not every detail of the section, but it covers the situations that arise most often after a parent's death.

The contest deadline. Under Probate Code section 16061.8, a person served with the notification under section 16061.7(a)(1) cannot bring an action to contest the trust more than 120 days from the date the notification is served on that person, or 60 days from the date a copy of the terms of the trust is delivered to that person during that 120-day period, whichever is later. Two features of that rule matter. First, the clock runs from service of the notification on the person — not from the date of death, and not from the date the trust became irrevocable. Second, a request for the trust terms made within the 120 days can extend the deadline if the copy arrives late in that period.

The presumption against certain gifts. Probate Code section 21380 presumes that a provision of an instrument making a donative transfer (a gift under a will or trust) is the product of fraud or undue influence when the recipient is, among the people the section describes:

• the person who drafted the instrument;
• a person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor at the time; or
• a care custodian of a transferor who is a dependent adult, but only if the instrument was executed while the care custodian was providing services or within 90 days before or after that period.

The presumption shifts the burden of proof: the person receiving the gift must rebut it, and can do so with clear and convincing evidence. It is conclusive, and cannot be rebutted, for a transfer to the drafter and to the persons 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. The rule is narrow by design. A gift to a relative, a friend who helped, or a caregiver outside the conditions the statute describes is not presumed invalid; it can still be challenged, but on the ordinary grounds and with the ordinary burden.

No contest clauses. Many California trusts and wills contain a no contest clause — a provision stating that a beneficiary who challenges the document loses his or her gift. Under Probate Code section 21311(a), such a clause may be enforced only against a direct contest brought without probable cause; against a pleading challenging a transfer of property on the ground that it was not the transferor's property at the time of the transfer, but only if the clause expressly provides for that; and against the filing of a creditor's claim or prosecution of an action based on it, again only if the clause expressly provides for that. 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 that the requested relief will be granted after an opportunity for further investigation or discovery. A no contest clause, in other words, does not automatically disinherit everyone who goes to court. How the clause is worded and what the contestant knew at filing both matter.

Trustee Duties and What Beneficiaries Can Do When They Are Breached

Many disputes are not about whether the trust is valid at all. A beneficiary may fully accept the trust and still be watching a trustee — often a sibling — who will not explain what is happening. For a beneficiary who has sent emails that go unanswered, the duties below are the starting point.

No self-dealing. Under Probate Code section 16004(a), a trustee has a duty not to use or deal with trust property for the trustee's own profit or for any other purpose unconnected with the trust, and not to take part in any transaction in which the trustee has an interest adverse to the beneficiary. Living in a trust house rent-free while other beneficiaries wait, buying trust property at a favorable price, or lending trust money to oneself are the kinds of conduct this duty addresses. Under section 16004(c), a transaction between the trustee and a beneficiary, during the trust or while the trustee's influence remains, by which the trustee obtains an advantage from the beneficiary is presumed to violate the trustee's fiduciary duties. That presumption affects the burden of proof, and it does not apply to an agreement about hiring the trustee or the trustee's compensation.

Information. A trustee must keep the beneficiaries reasonably informed of the trust and its administration (Probate Code section 16060). Generally, and subject to the exceptions in section 16069, a trustee must also respond to a beneficiary's reasonable request by providing requested information about the trust's administration relevant to that beneficiary's interest (section 16061).

Accountings. An account is a formal report of what came into the trust, what went out, and what remains. Under Probate Code section 16062, except as that section and section 16064 provide, the trustee must account at least annually, at the termination of the trust, and upon a change of trustee — to each beneficiary to whom income or principal is required or authorized in the trustee's discretion to be currently distributed. Not every beneficiary is owed an annual account; someone who inherits only when a surviving parent dies, for example, may fall outside that group while the parent is alive. Section 16064 lets the trust instrument, or a beneficiary's own writing, waive the account, but even then the court may compel the trustee to account upon a showing that it is reasonably likely that a material breach of the trust has occurred.

Petitions to compel. When requests go unanswered, Probate Code section 17200(b)(7) provides two court petitions. A petition to compel information is available if the trustee has failed to provide requested information within 60 days after the beneficiary's reasonable written request and the beneficiary has not received the information within the six months before the request. A petition to compel an account is available if the trustee has failed to submit a requested account within 60 days after written request and no account has been made within the six months before the request. The written request is what starts both clocks.

Remedies for breach of trust. If a trustee commits or threatens to commit a breach of trust, a beneficiary or cotrustee may bring a proceeding under Probate Code section 16420(a) for any appropriate purpose, including to compel the trustee to perform the trustee's duties, to enjoin a breach, to compel the trustee to redress a breach by payment of money or otherwise, to appoint a receiver or temporary trustee, to remove the trustee, to set aside acts of the trustee, to reduce or deny the trustee's compensation, to impose an equitable lien or constructive trust on trust property, and to trace and recover property wrongfully disposed of — several of these subject to section 18100. A constructive trust is a court order treating specific property held by one person as belonging to another. Under section 16420(b), these 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 listed in section 15642(b) include a breach of trust, the trustee being insolvent or otherwise unfit, hostility or lack of cooperation among cotrustees that impairs administration, the trustee failing or declining to act, and excessive compensation.

Surcharge. A surcharge is a court order making a trustee personally pay for harm caused by a breach. Under Probate Code section 16440(a), a trustee who commits a breach of trust is chargeable, as is appropriate under the circumstances, with any loss or depreciation in value resulting from the breach, with interest; any profit the trustee made through the breach, with interest; or any profit that would have accrued to the trust estate had the breach not caused the loss. Surcharge is not automatic. Under section 16440(b), if the trustee acted reasonably and in good faith under the circumstances as known to the trustee, the court may excuse the trustee in whole or in part if it would be equitable to do so.

Time limits. Under Probate Code section 16460(a), a claim for breach of trust 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 existence of the claim. Where no account or report discloses the claim, or none is received, the three years run from when 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 the claim or reasonably should have inquired. Not every disagreement with a trustee is a breach of trust, but receiving an account starts a clock either way.

Executor Misconduct and Recovery of Estate Property

When an estate goes through probate rather than a trust, the person in charge is the personal representative — an executor named in a will, or an administrator appointed by the court. Heirs who have waited for a distribution that never comes, or who suspect estate assets are disappearing, have tools here too.

Removal of a personal representative. Probate Code section 8502 allows removal for these causes: the personal representative has wasted, embezzled, mismanaged or committed a fraud on the estate, or is about to do so; is incapable of properly executing the duties of the office or is otherwise not qualified; has wrongfully neglected the estate or long neglected to perform any act as personal representative; removal is otherwise necessary to protect the estate or interested persons; or any other cause provided by statute.

Distribution. Under Probate Code section 11600, the personal representative or an interested person may petition the court for an order for preliminary or final distribution of the decedent's estate to the persons entitled to it. A beneficiary does not have to wait indefinitely for the executor to act on his or her own.

Recovery and the double-value remedy. Probate Code section 859 addresses property wrongfully taken from a trust or the estate of a decedent (as well as from a conservatee, a minor, an elder or a dependent adult). If a court finds that a person has in bad faith wrongfully taken, concealed or disposed of that property, or has taken, concealed or disposed of it by undue influence in bad faith or through elder or dependent adult financial abuse as defined in the Welfare and Institutions Code, the person is liable for twice the value of the property recovered by an action under that part of the Probate Code. The court may also, in its discretion and except as otherwise required by law, hold the person liable for reasonable attorney's fees and costs. Both depend on that court finding; neither the doubled amount nor fees follow automatically from showing that property was transferred. Houses deeded shortly before death, accounts re-titled to one child, and business interests moved into a family member's name are among the assets these proceedings commonly concern.

How California Courts Handle These Disputes

Trust and estate cases in California are heard by the Superior Court of California for the county involved. For a trust, the core vehicle is a petition — a written request asking the court for a specific order — rather than an ordinary lawsuit.

Under Probate Code section 17200(a), and except as section 15800 provides, a trustee or beneficiary may petition the court concerning the internal affairs of the trust or to determine whether the trust exists. Section 17200(b) lists proceedings that count as internal affairs, including determining questions of construction of a trust instrument, determining the existence or nonexistence of any immunity, power, privilege, duty or right, determining the validity of a trust provision, and ascertaining beneficiaries and who receives property when the trust ends — and the statute says that list is not exhaustive. The petitions to compel information and an account described earlier are part of the same section. A fuller treatment of the Probate Code 17200 petition covers who may file and how notice works.

Once a petition is before it, the court's authority is broad. Under Probate Code section 17206, the court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented, including appointing a temporary trustee to administer the trust in whole or in part. That matters when a beneficiary is concerned that assets will be lost before the dispute is resolved.

For a will, the proceeding takes place within the probate case itself, through the objection or the petition to revoke described above. Will and trust disputes involving the same family are sometimes heard side by side. The broader overview of California trust litigation explains how these proceedings fit together. The California courts' own self-help materials and court locator, listed in the sources below, identify the Superior Court for each county.

What to Know Before Contacting an Attorney About an Inheritance Dispute

This site is not the right resource for every situation. It does not provide estate planning advice, it does not cover routine trust or estate administration where no one is in disagreement, and it does not address disputes governed by the law of any state other than California.

For a reader who is in or near a dispute, the information that tends to matter most in an initial inquiry is fairly consistent:

• The kind of dispute — a will, a trust or amendment, a trustee's or executor's conduct, or property that left the estate or trust.
• The county where the trust is administered or the probate case is pending, since that determines which Superior Court hears it.
• An approximate timeline — the date of death, when any new document was signed, and when the reader first learned of the problem.
• Documents received, especially any trustee notification, copy of the trust terms, account or written report, court notice, and correspondence with the trustee or executor, along with the dates each arrived.

Dates deserve particular attention, because several of the deadlines above run from when something was served or received rather than from when the dispute began. Readers who are the trustee or executor accused of wrongdoing need the same information; the statutes protect a fiduciary who acted reasonably and in good faith as well as the beneficiaries.

You can verify whether any attorney is licensed in California through the State Bar of California, linked in the sources below.

Discussing a Will, Trust or Executor Dispute

Inheritance disputes in California turn on details that are easy to overlook from the outside: the date a trustee's notification was actually served, whether a beneficiary is one to whom distributions are currently authorized, what a no contest clause says word for word, and what a written account disclosed and when. A consultation about this kind of dispute typically looks at the will or trust and any amendments, the trustee notification and trust terms, accounts and correspondence, the timeline of signing and death, and the conduct at issue with the trust's or estate's property. For a reader whose question is really about planning an estate or handling an administration no one disputes, this page is not the place to start.

To discuss a will, trust or executor dispute with an attorney, you can request a consultation about your dispute through California Trust Litigation Lawyers.