California Trust Litigation Attorney

Trust litigation in California is the court process for resolving a dispute over a trust or estate: whether a trust or will is valid, whether a trustee or executor is acting lawfully, and whether beneficiaries receive the information, accounting and property they are owed. Contest deadlines can be short, and these cases are heard by the Superior Court of California.

Most people facing a trust dispute did not go looking for one. A parent has died. A sibling took over as trustee and stopped returning calls. A trust amendment signed in the last months of a parent's life cuts out someone who expected to inherit. Sometimes the reader is the trustee, accused of something they believe they did not do. The questions are usually the same. Is what happened actually wrong under California law? Is there a deadline already running? What can a court do about it?

This page explains those disputes the way a litigator would across a table. It covers the parties involved, the duties at issue, the Probate Code sections that govern them, what remedies a court can order, and how a case moves through a California probate court.

What Trust Litigation Means Under California Law

Trust litigation is the use of court proceedings to resolve disagreements about a trust's validity, its administration or its enforcement. That is different from ordinary trust administration, where a trustee manages and distributes property and nobody objects. A few terms come up throughout this page:

• A settlor is the person who created the trust.
• A trustee is the person or institution holding and managing the trust property.
• A beneficiary is a person entitled to benefit from the trust.
• A fiduciary is anyone the law holds to a duty of loyalty and care toward others. Trustees and executors are fiduciaries.

The basic tool is Probate Code section 17200(a). It generally allows a trustee or beneficiary to petition the court about the trust's internal affairs or to determine whether a trust exists. The exception is section 15800. While a trust is still revocable and a person holding the power to revoke it is competent, the beneficiary's rights generally belong to that person rather than to the beneficiary.

Section 17200(b) lists proceedings that count as internal affairs, and says the list is not exhaustive. Examples include:

• construing what a trust instrument means;
• determining whether a power, duty or right exists;
• determining whether a trust provision is valid; and
• compelling a trustee to report information or to account.

California courts hear trust contests, breach of fiduciary duty claims, trustee removal petitions, accounting disputes, will contests and actions to recover wrongfully taken property. This page addresses California law only.

Types of Trust and Estate Disputes This Site Covers

California's trust and probate law applies statewide, in Los Angeles, Orange, Sacramento and San Diego counties and every other county, and these disputes are heard by the Superior Court of California; which county's court hears a particular matter depends on the Probate Code's venue rules and the facts. The main categories are:

• Trust contests. These challenge whether a trust or an amendment is legally valid.
• Will contests. These may be filed as an objection to probate before the will is admitted (Probate Code section 8250). They may also be filed as a petition to revoke probate within 120 days after admission, with the exceptions section 8270 provides.
• Breach of fiduciary duty. These claims involve a trustee's duties of loyalty, information and accounting under sections 16004, 16060, 16061 and 16062.
• Trustee removal. These proceedings are brought under section 15642, which lists grounds that include, but are not limited to, breach of trust.
• Accounting disputes. These arise under section 16062. Under section 16064, a court may compel an account even when one was waived.
• Recovery of wrongfully taken property. Under section 859, double liability requires a court finding that the property was wrongfully taken, concealed or disposed of in bad faith, taken by undue influence in bad faith, or taken through elder or dependent adult financial abuse; attorney's fees are discretionary.
• Executor disputes. These include removal of a personal representative under section 8502.

What this page does not cover. This site is about disputes. It does not cover drafting or funding a trust, estate planning, or administering a trust or estate when no one disputes anything. Not every disagreement with a trustee is a breach of trust. A trustee may make a lawful decision that a beneficiary dislikes.

Trust Contests: Validity Challenges and the 120-Day Deadline

A trust contest asks the court to declare all or part of a trust instrument invalid. Common grounds are lack of capacity, undue influence, fraud or duress. Late-life amendments draw the most contests, because they are usually signed when the settlor's health and independence were weakest.

The trustee's notification. Probate Code section 16061.7(a) requires a trustee to serve a formal notification when certain events occur. These events include:

• when a revocable trust, or part of one, becomes irrevocable because a settlor dies; and
• whenever the trustee of an irrevocable trust changes.

That list is partial. The statute names other events as well.

The contest deadline. Under section 16061.8, a person served with the notification after a settlor's death cannot bring an action to contest the trust after the later of two dates:

1. 120 days from the date the notification is served on that person; or
2. 60 days from the date a copy of the trust's terms is delivered to that person, if delivery happens during that 120-day period.

The clock is tied to service of the notification and delivery of the terms. It does not run from the date of death. For that reason, the date the notification arrived is one of the most important facts in a contest.

Presumed undue influence. Section 21380 presumes that a gift in an instrument is the product of fraud or undue influence when the recipient is one of these people:

• the person who drafted the instrument;
• a person in a fiduciary relationship with the transferor who transcribed the instrument or had it transcribed; or
• a care custodian of a dependent adult, if the instrument was signed while the care custodian was providing services or within 90 days before or after that period.

The presumption shifts the burden of proof. Generally, the beneficiary can rebut it with clear and convincing evidence. The presumption is conclusive, however, for a gift to the drafter and to certain people closely associated with the drafter. A beneficiary who fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees. This does not mean every gift to a caregiver or relative is presumed invalid. Only the listed relationships trigger it. "Undue influence" itself has the meaning that Probate Code section 86 adopts by reference to the Welfare and Institutions Code.

No contest clauses. A no contest clause is a provision meant to disinherit a beneficiary who challenges the instrument. Under section 21311(a), it may be enforced only against these contests:

• a direct contest brought without probable cause;
• a pleading claiming that transferred property did not belong to the transferor, but only if the clause expressly covers that; and
• a creditor's claim or an action based on one, but only if the clause expressly covers that.

Under section 21311(b), probable cause exists if the facts known when the contest is filed would lead a reasonable person to believe the requested relief is reasonably likely to be granted after further investigation or discovery. A clause does not automatically disinherit everyone who challenges.

Capacity to make a will. Probate Code section 6100.5 tests mental capacity at the moment the will was made. The questions include whether the person understood the nature of the act, their property, and their relationships to family and others affected by the will. A diagnosis such as dementia does not, by itself, make a will invalid.

Trustee Duties, Breach of Fiduciary Duty, and Available Remedies

A trustee's duties are set by statute, not by the trustee's own sense of fairness. Many beneficiaries reasonably wonder whether a silent or slow trustee is actually breaking the law. The duties below are where that question is answered.

Loyalty. Under section 16004(a), a trustee may not use trust property for personal profit or for any purpose unconnected with the trust. A trustee also may not take part in a transaction where the trustee has an interest adverse to a beneficiary. Under section 16004(c), a transaction in which the trustee gains an advantage from a beneficiary is presumed to violate the trustee's fiduciary duties. That presumption shifts the burden of proof. It does not apply to agreements about the trustee's hiring or compensation. Self-dealing disputes often involve a trustee who lives in the family house rent-free, buys trust real estate, or runs a trust-owned business for personal benefit.

Information. Section 16060 requires the trustee to keep beneficiaries reasonably informed. Section 16061, generally and subject to the exceptions in section 16069, requires the trustee to provide requested information relevant to a beneficiary's interest when the beneficiary makes a reasonable request.

Accounting. Section 16062 requires an account at least annually, at the end of the trust, and when the trustee changes. Exceptions in that section and in section 16064 apply. The duty runs to each beneficiary to whom income or principal must be, or may in the trustee's discretion be, currently distributed. Not every beneficiary is owed an annual account. A trust instrument or a beneficiary's written waiver may excuse the account. Even then, section 16064 allows the court to compel one on a showing that a material breach of trust is reasonably likely to have occurred.

Petitions to compel. Section 17200(b)(7) makes a petition to compel available in two situations:

• Information: the trustee has not provided requested information within 60 days after a reasonable written request, and the beneficiary has not received it within the six months before the request.
• An account: the trustee has not submitted a requested account within 60 days after a written request, and no account has been made within the six months before the request.

Remedies. When a trustee commits or threatens to commit a breach of trust, section 16420(a) allows a beneficiary or cotrustee to bring a proceeding to:

1. compel the trustee to perform the trustee's duties;
2. enjoin, or stop, a breach;
3. compel redress by payment of money or otherwise;
4. appoint a receiver or temporary trustee;
5. remove the trustee;
6. set aside the trustee's acts, subject to section 18100;
7. reduce or deny the trustee's compensation;
8. impose an equitable lien or constructive trust, subject to section 18100; and
9. trace and recover wrongfully disposed property, subject to section 18100.

Under section 16420(b), these remedies do not rule out other appropriate remedies. A constructive trust is a court order treating specific property as held for its rightful owner.

Surcharge. A surcharge is a money judgment against the trustee personally. Under section 16440(a), a breaching trustee is chargeable with whichever of these is appropriate:

• the loss or depreciation caused by the breach, with interest;
• the profit the trustee made through the breach, with interest; or
• the profit the trust would have earned without the breach.

Surcharge is not automatic. Under section 16440(b), the court may excuse a trustee who acted reasonably and in good faith, in whole or in part, if doing so would be equitable.

Time limits. Section 16460(a) bars a breach of trust claim unless a proceeding is filed within one of two periods:

• within three years after the beneficiary receives an account or other written report that adequately discloses the claim; or
• if 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.

Trustee Removal and Compensation Disputes

Under Probate Code section 15642(a), a trustee may be removed in three ways:

• under the terms of the trust instrument;
• by the court on its own motion; or
• on a petition under section 17200 by a settlor, cotrustee or beneficiary.

Section 15642(b) lists grounds for removal that include:

• a breach of trust;
• insolvency or other unfitness to administer the trust;
• hostility or lack of cooperation among cotrustees that impairs administration;
• failing or declining to act; and
• compensation that is excessive under the circumstances.

The list is partial, and courts are not limited to those grounds. Removal disputes often unfold while the trust property is at risk. Section 17206 lets the court make orders necessary or proper to dispose of the petition, including appointing a temporary trustee to administer all or part of the trust in the meantime.

Compensation. When the trust instrument does not set the trustee's pay, section 15681 entitles the trustee to reasonable compensation under the circumstances. Under section 15686(b), a trustee may not charge an increased fee without first giving at least 60 days' written notice to the beneficiaries that section lists. These include each beneficiary entitled to an account and each beneficiary who received the last account. Under section 15686(c), if a section 17200 petition about the increase is served before the 60 days run out, the increase is held back until the court orders otherwise or the petition is dismissed.

Executors and administrators. A personal representative, meaning the executor or administrator of a probate estate, may be removed for the causes listed in section 8502:

• wasting, embezzling, mismanaging or committing a fraud on the estate, or being about to do so;
• being incapable of properly performing the duties of the office, or not being qualified for appointment;
• wrongfully neglecting the estate, or long neglecting to perform any act as personal representative;
• removal being otherwise necessary to protect the estate or interested persons; and
• any other cause provided by statute.

Recovery of Wrongfully Taken Property and Double Damages

Probate Code section 859 addresses property that has been taken, hidden or disposed of. If a court finds that a person did any of the following with property belonging to a trust or a decedent's estate, that person is liable for twice the value of the property recovered in the action:

• in bad faith, wrongfully took, concealed or disposed of the property;
• took it by undue influence in bad faith; or
• took it through elder or dependent adult financial abuse.

The court may also, in its discretion, award reasonable attorney's fees and costs.

Neither result is automatic. The double liability depends on the court's finding of one of the listed kinds of misconduct, and the fees depend on the court's discretion. These disputes commonly involve a bank account emptied before death, a house deeded during a final illness, or personal property removed from a parent's home.

Section 859 is different from surcharge under section 16440. Surcharge measures the trust's loss or the trustee's profit from a breach, and it applies to trustees. Section 859 can reach any person found to have acted as the statute describes. It adds a penalty-style measure, but only after the required finding.

How California Trust and Estate Cases Proceed

California trust and estate disputes are heard by the Superior Court of California. Which county's court hears a particular matter, whether Los Angeles, Orange, Sacramento, San Diego or another county, depends on the Probate Code's venue rules and the facts.

Petitions. Trust cases usually begin with a petition. That may be a general petition under section 17200, or one aimed at specific relief, such as remedies for breach of trust under section 16420 or removal under section 15642. The general arc runs like this:

1. A petition is filed.
2. Notice is given to the interested parties.
3. Those parties have an opportunity to respond.
4. The court holds one or more hearings.
5. The court issues an order.

Contested matters can also involve discovery and an evidentiary trial. Section 17206 gives the court broad power to make the orders needed to dispose of what the petition presents.

Will contests before probate. Under 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. The people summoned must file a written response within 30 days after service.

After a will is admitted. Under section 8270(a), an interested person may petition to revoke probate within 120 days after a will is admitted. This option is not available to a party to an earlier will contest, or to someone who had actual notice of that contest in time to join it. Under section 8270(b), a person who was a minor, or who was incompetent without a guardian or conservator when the will was admitted, may petition at any time before the order for final distribution.

Documents That Are Useful in a Trust Dispute

The documents usually tell the story better than anyone's memory of a family argument. Useful items include:

• The trust instrument and every amendment, along with any earlier versions available.
• Any trustee's notification under section 16061.7, with the date it was served. The section 16061.8 deadline runs from that date.
• The date a copy of the trust's terms was received, if it came separately.
• Accountings, statements or written reports from the trustee.
• Letters, emails and texts with the trustee or other family members.
• Any written requests sent for information or an account, and the response or the silence that followed.
• The will and any codicils, which are amendments to a will, if a will is involved, plus any probate filings received.
• Documents showing the person's role, such as a beneficiary designation, an heir relationship or a cotrustee appointment.

Discussing Your Trust or Inheritance Dispute

Trust disputes turn on a handful of facts. These include: - the date a notification was served; - which version of the trust controls; - who drafted or arranged an amendment; - what the trustee disclosed, and when; - where the money or property went.

A consultation about this kind of dispute typically looks at the trust documents, the accounts, the dates and the conduct. An attorney who reviews those facts is the one who can say which deadline applies and which remedy, if any, fits. Questions about setting up a trust or administering an estate that no one is contesting fall outside this page.

Request a consultation

To discuss a trust or estate dispute with an attorney, you can contact California Trust Litigation Lawyers to request a consultation about your dispute.