California Probate Litigation Attorney: What to Know Before You File

Probate litigation is the court fight that begins when people disagree about a California estate or trust. It covers challenges to a will or trust, claims that a trustee or executor broke their duties, efforts to remove a fiduciary, and suits to recover property someone wrongfully took. These disputes are decided by the Superior Court of California for the county involved.

Most people searching for a probate litigation attorney are not asking an abstract question. A parent has died, and something does not add up. A brother has controlled the accounts for a year and will not say what is in them. A trust was rewritten a few months before the end, and the new version leaves out people the old one included. Or you are the trustee or executor, and a relative has accused you of things you do not believe you did. What you are trying to work out is whether this is a real legal dispute, what California law says about it, and which deadlines may already be running.

This page walks through the main kinds of probate and trust disputes in California, the Probate Code rules that govern each one, what a court can order, and what this site does and does not do.

What Probate Litigation Is — and What It Is Not

Probate litigation means a contested proceeding in the Superior Court of California for the county where the estate or trust is being administered. "Contested" is the key word. When a will is admitted, assets are gathered, bills are paid and property is distributed with nobody objecting, that is ordinary administration, and it is not the subject of this page or this site.

A dispute turns administration into litigation. In California, the disputes that reach the probate court tend to fall into a handful of categories:

• Will contests, which challenge whether a will is valid at all.
• Trust contests, which challenge a trust or an amendment to it, often one signed late in the settlor's life. (A settlor is the person who created the trust.)
• Breach of fiduciary duty claims against a trustee or a personal representative. A personal representative is the executor or administrator who manages a probate estate.
• Removal proceedings to take a trustee or personal representative out of office.
• Recovery of property that was wrongfully taken from a trust or estate, including houses, accounts, business interests and personal property.
• Creditor and heirship disputes, which concern who is owed money from an estate and who is legally entitled to inherit.

Each category has its own procedure, its own deadlines and its own remedies, and nearly all of them come from the California Probate Code. That is why the first question in any dispute is not "who is right" but "what kind of proceeding is this," because the answer decides which clock is running and what the court is allowed to do.

Will Contests and Objections to Probate in California

A will contest can be brought at two different points: before the will is admitted to probate, or after.

Before admission. Under Probate Code section 8250, a person contesting a will files an objection to probate of the will with the court. A summons is then issued and served, with a copy of the objection, on the people who must receive notice of the petition to administer the estate. The people who are summoned then have 30 days after service to file a written response. From that point the contest proceeds much like other civil litigation, with pleadings, discovery and, if it does not resolve, a trial.

After admission. Probate Code section 8270 gives an interested person 120 days after a will is admitted to probate to petition the court to revoke the probate of the will, and the petition has to set out the written grounds of opposition. That window is not open to someone who was already a party to a will contest, or to someone who had actual notice of a will contest in time to have joined it. There is one exception to the 120-day limit. A person who was a minor, or who was incompetent and had no guardian or conservator, when the will was admitted may petition at any time before the court enters an order for final distribution.

The common grounds for a will contest, in plain terms:

• Lack of testamentary capacity. Capacity is measured at the moment the will is made. Under Probate Code section 6100.5, a person lacks the capacity to make a will if, at that time, they cannot understand the nature of making a will, cannot understand and recall the nature and situation of their property, or cannot remember and understand their relationships with their living descendants, spouse and parents and with the people whose interests the will affects. The statute describes other circumstances as well. A diagnosis by itself, including dementia, does not make a will invalid. The question is what the person could understand on the day they signed.
• Undue influence. This is pressure that overcomes the will-maker's own free choice, so that the document reflects someone else's wishes. California law defines the term by statute, and the facts that prove it are usually circumstantial: who arranged the signing, who was present, who benefited, and how dependent the person was.
• Fraud. The will-maker was deceived into signing, or into signing a particular document.
• Improper execution. The will was not signed or witnessed the way California law requires, or the signature is not genuine.

No contest clauses. Many wills and trusts contain a no contest clause, a provision that takes away a gift from a beneficiary who challenges the document. These clauses are narrower than many families assume. Under Probate Code section 21311, a no contest clause may only be enforced against a direct contest brought without probable cause, a pleading challenging a transfer of property on the ground that it was not the transferor's property at the time, and the filing of a creditor's claim or an action based on one. The last two apply only if the clause expressly says so. Probable cause exists if, when the contest is filed, the facts known to the person contesting would lead a reasonable person to believe there is a reasonable likelihood that the relief requested will be granted after a chance for further investigation or discovery. A no contest clause does not automatically disinherit everyone who raises a challenge.

Trust Contests and the Notice Deadline Under California Law

Trust contests usually start with a piece of mail. Probate Code section 16061.7 requires a trustee to serve a written notification in certain events, including when a revocable trust, or part of one, becomes irrevocable because a settlor has died, and whenever there is a change of trustee of an irrevocable trust. The statute lists other events too. The notification tells beneficiaries and heirs that the trust exists and that they may request a copy of its terms.

That notification starts the deadline that matters most in a trust contest. Under Probate Code section 16061.8, a person served with the notification after a settlor's death 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 trust terms is delivered to that person, if the delivery happens during that 120-day period,

whichever is later. The clock does not run from the date of death or from the date the trust became irrevocable. It runs from service of the notification, and possibly from delivery of the trust terms. If you have received a notification, the date you received it is one of the most important facts in your situation. The process of filing a challenge is covered in more detail on this site's page about how to contest a trust.

The donative transfer presumption. California law gives special scrutiny to gifts made to certain people. Under Probate Code section 21380, a provision of a will, trust or other instrument that makes a gift to any of the following is presumed to be the product of fraud or undue influence, along with others the statute describes:

• The person who drafted the instrument.
• A person who transcribed the instrument, or had it transcribed, and who was in a fiduciary relationship with the transferor at the time.
• 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 presumption shifts the burden of proof to the person receiving the gift. It can generally be overcome by clear and convincing evidence, but for a gift to the person who drafted the instrument, and to certain people associated with the drafter, it cannot be overcome. A beneficiary who fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees. The presumption does not apply to every gift to a caregiver, a relative or someone who helped out. It applies to the specific people and circumstances the statute names.

The no contest clause rules described in the will contest section apply to trusts in the same way.

Trustee Duties, Breach of Fiduciary Duty, and Court Remedies

A trustee is a fiduciary, which means the law requires them to act for the beneficiaries rather than for themselves. Many beneficiaries reasonably wonder whether a trustee who is slow, curt or simply disagrees with them has done anything wrong. Often the answer is no. Not every frustration with a trustee is a breach of trust. The statutes below describe where the line is.

Loyalty and self-dealing. Under Probate Code section 16004, a trustee may not use or deal with trust property for the trustee's own profit or for any purpose unconnected with the trust, and may not take part in any transaction in which the trustee's interest is adverse to a beneficiary's. A trustee who lives in a trust house rent-free, buys a trust asset at a discount, or pays their own business from trust funds raises this question directly. When a trustee enters a transaction with a beneficiary and gains an advantage from it, the law presumes the trustee violated their fiduciary duties, which puts the burden on the trustee to justify it. That presumption does not apply to agreements about hiring or paying the trustee.

Information. Probate Code section 16060 requires the trustee to keep beneficiaries reasonably informed of the trust and its administration. Under Probate Code section 16061, a trustee must generally provide information about the administration that is relevant to a beneficiary's interest when the beneficiary reasonably asks for it, subject to exceptions in the Probate Code.

Accounts. An account is a formal report showing what the trust held, what came in, what went out and what remains. Under Probate Code section 16062, a trustee must generally account at least once a year, when the trust ends and when the trustee changes, but that duty runs 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, and some older trusts are exempt. A trust instrument can waive the account, but Probate Code section 16064 lets the court compel the trustee to account anyway on a showing that it is reasonably likely a material breach of the trust has occurred.

Petitions to compel. A trustee or beneficiary may petition the court about the internal affairs of a trust under Probate Code section 17200, which covers matters including interpreting the trust, determining rights and duties, deciding the validity of a provision, and settling accounts and reviewing the trustee's acts. If a trustee fails to provide requested information within 60 days after a beneficiary's reasonable written request, and the beneficiary has not received that information in the six months before the request, the beneficiary may petition to compel it. A petition to compel an account works the same way: the trustee has failed to provide a requested account within 60 days after a written request, and no account was made in the six months before the request. This site's page on the Probate Code 17200 petition explains that petition in detail.

Remedies. If a trustee commits or threatens to commit a breach of trust, Probate Code section 16420 allows a beneficiary or cotrustee to start a proceeding for any appropriate purpose, including:

• compelling the trustee to perform their duties,
• stopping the trustee from committing a breach,
• compelling the trustee to make good a breach by paying money or otherwise,
• appointing a receiver or temporary trustee to take control of the trust property,
• removing the trustee,
• setting aside the trustee's acts, subject to protections for certain third parties, and
• reducing or denying the trustee's compensation.

California law also allows the court to impose an equitable lien or a constructive trust on property, and to trace and recover property that was wrongfully disposed of, subject to protections for certain third parties. A constructive trust is an order that someone holding property is holding it for the rightful owner and must turn it over. These remedies do not prevent a beneficiary from pursuing any other appropriate remedy.

Surcharge. A surcharge is an order that a trustee personally pay for harm caused by a breach. Under Probate Code section 16440, a trustee who commits a breach is chargeable with whichever of the following is appropriate: the loss or depreciation in value of the trust estate caused by the breach, with interest; any profit the trustee made through the breach, with interest; or profit the trust would have earned if the breach caused that lost profit. A surcharge is not automatic. If the trustee acted reasonably and in good faith under the circumstances as the trustee knew them, the court may excuse the trustee in whole or in part where that would be equitable.

The three-year deadline. Under Probate Code section 16460, if a beneficiary received a written interim or final account, or another written report, that adequately disclosed the existence of a claim, the claim is barred unless a proceeding is started within three years after the beneficiary received it. A report adequately discloses a claim if it gives enough information that the beneficiary knew of the claim or reasonably should have looked into it. If no account or report disclosed the claim, or none was received, the three years run from when the beneficiary discovered, or reasonably should have discovered, the subject of the claim.

Removing a Trustee or Personal Representative

Under Probate Code section 15642, a trustee may be removed in the way the trust instrument provides, by the court on its own motion, or on a petition by a settlor, cotrustee or beneficiary under section 17200. The grounds for removal by the court include:

• the trustee has committed a breach of trust,
• the trustee is insolvent or otherwise unfit to administer the trust,
• hostility or lack of cooperation among cotrustees is impairing the administration of the trust,
• the trustee fails or declines to act, and
• the trustee's compensation is excessive under the circumstances.

The statute lists other grounds as well. Removal disputes often involve siblings serving together as cotrustees who cannot agree on whether to sell a house, or a trustee who has simply stopped acting. While a petition is pending, Probate Code section 17206 allows the court to make any orders necessary or proper to dispose of the matters before it, including appointing a temporary trustee to run the trust in whole or in part.

Compensation disputes. Where the trust instrument does not set the trustee's pay, Probate Code section 15681 entitles the trustee to reasonable compensation under the circumstances. Under Probate Code section 15686, a trustee may not charge an increased fee unless the trustee first gives at least 60 days' written notice to the beneficiaries the statute names, including each beneficiary entitled to an account and each beneficiary who received the last account. If a beneficiary files and serves a section 17200 petition challenging the increase before that notice period ends, the increase cannot take effect until the court orders otherwise or the petition is dismissed.

Personal representatives. In a probate estate, the executor or administrator answers to the court as well. 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; are incapable of properly carrying out the duties of the office or are otherwise not qualified; have wrongfully neglected the estate or long neglected to perform any act as personal representative; if removal is otherwise necessary to protect the estate or interested persons; or for any other cause provided by statute. A personal representative who breaches a fiduciary duty can also be charged under Probate Code section 9601 with the resulting loss with interest, any profit made through the breach with interest, or profit the estate would have earned, whichever is appropriate.

If you are the trustee or executor facing a removal petition, the same statutes define what the other side must show, and the court looks at the record of what was actually done, not the accusations alone.

Recovery of Wrongfully Taken Property and Double-Damages Claims

Some disputes are about a specific thing: a parent's house deeded to one child shortly before death, an account emptied by someone holding a power of attorney, a business interest transferred without explanation, or jewelry and personal property that disappeared from the home. California law gives the probate court a procedure for deciding who owns property that a trust or estate claims, and for ordering it returned.

Probate Code section 859 adds a significant remedy. 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 other protected categories), or has taken, concealed or disposed of it through undue influence in bad faith or through elder or dependent adult financial abuse, that person is liable for twice the value of the property recovered in the action. The court may also, in its discretion, award reasonable attorney's fees and costs against a person liable under that section.

Neither double recovery nor fees is automatic. The court must first make one of the findings the statute requires. Proof of bad faith, undue influence in bad faith, or financial abuse is a separate and often contested question from whether the property should come back at all. This remedy sits alongside the others already described. For trust property, the court can also impose a constructive trust, trace the property and set aside the trustee's acts. For estate property, a personal representative who took or allowed the loss can face removal under section 8502 and surcharge under section 9601. For a broader overview of how these remedies fit together, see this site's page on the California trust litigation attorney.

What to Look for When Evaluating Representation for a California Probate Dispute

Probate litigation is a different discipline from estate planning. An attorney who drafts wills and trusts works to prevent disputes. An attorney focused on contested proceedings works on what happens after one has started: objections to probate, trust contests filed against the section 16061.8 deadline, petitions to compel an account, removal and surcharge proceedings, and section 859 claims. Those cases are heard in the Superior Court of California for the county where the estate or trust is administered, and they turn on evidence such as medical records, the drafting attorney's file, bank statements, deeds, and the timing of signatures and transfers.

When a family is already in conflict, it helps to know what kind of help you are looking at. This site is about disputes. It is not concerned with estate planning, routine estate or trust administration where nobody disputes anything, or disputes governed by another state's law.

The State Bar of California also operates a lawyer referral program, described at calbar.ca.gov, and the California Courts website at courts.ca.gov has general information about probate proceedings.

Discussing a Probate or Trust Dispute

Probate disputes are shaped as much by dates and documents as by family history: when the trustee's notification arrived, when the will was admitted, which version of the trust was signed and who was in the room, what the accounts show and what they leave out. A consultation about this kind of dispute typically looks at those documents, the timeline of signatures and transfers, the trustee's or executor's conduct, and which deadline under the Probate Code may apply. If what you have is a disagreement about how a trust is being run, and not yet a claim that anything was taken or concealed, that distinction is itself worth discussing with an attorney rather than assuming.

To describe your situation to an attorney, you can contact California Trust Litigation Lawyers to request a consultation about your dispute.