Contested Probate in California: What It Is and How It Works

Contested probate is a formal court dispute inside a California probate estate or trust: a challenge to a will or trust, a demand that an executor or trustee account or be removed, or a fight over who owns property. It is decided by the Superior Court of California in the county where the estate or trust is administered.

Most people facing a contested probate matter did not go looking for one. A notice arrives in the mail about a parent's estate or trust, and something in it does not match what you were told for years. A will may have been signed in the last months of a life. A sibling may have quietly taken control of the house and the accounts. A trustee may answer every question with silence. Or you may be the trustee or executor, now accused of misconduct and trying to understand what the accusation actually means. In each case the question is the same: what does California law let each person do, and by when?

This page walks through the disputes California probate courts hear, the grounds and deadlines that govern will and trust contests, the duties trustees and executors owe, and the remedies a court may order.

What a Contested Probate Case Is

A contested probate case is a dispute that a judge has to decide, as opposed to an uncontested administration in which the executor or trustee gathers assets, pays debts and distributes property without anyone objecting. The paperwork can look similar. The difference is that someone has formally challenged a document, a fiduciary or a transaction, and the court must rule. A fiduciary is the person legally responsible for managing property for others, such as a trustee or an executor.

These disputes usually fall into a handful of categories:

• Will contests, brought either as an objection before the will is admitted to probate or as a petition to revoke probate afterward.
• Trust contests, challenging the validity of a trust or an amendment.
• Challenges to a personal representative or trustee, seeking removal, an accounting, repayment or other relief.
• Petitions about a trust's internal affairs. Under Probate Code section 17200(a), a trustee or beneficiary may generally petition the court concerning the internal affairs of the trust or to determine whether the trust exists. Section 17200(b) lists proceedings that qualify, including construing the trust's terms, determining whether a power, duty or right exists, and determining the validity of a trust provision, but that list is expressly not exhaustive. A Probate Code 17200 petition is the vehicle for much trust litigation.

Many of these proceedings refer to an "interested person." In plain words, that is someone whose legal or financial interest in the estate or trust could be affected by the outcome: an heir, a named beneficiary, a creditor, or a fiduciary. Under Probate Code section 1043, an interested person may appear and respond or object in writing at or before a hearing, or orally at the hearing, in which case the court either decides the objection then or continues the hearing so it can be made in writing.

Every one of these cases is heard by the Superior Court of California for the county where the estate or trust is being administered. There is no separate probate court system; the probate department is part of the county's Superior Court.

Grounds for Contesting a Will in California

A will is not invalid because it is unfair, surprising or different from an earlier version. A contestant has to prove a legal ground. Under Probate Code section 8252, the people offering the will must prove it was properly executed, and the people contesting it bear the burden of proving lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation.

Lack of capacity. Testamentary capacity is the mental ability the law requires to make a valid will, and it is measured at the moment the will is made. Under Probate Code section 6100.5, a person is not mentally competent to make a will if, at that time, the person lacks sufficient capacity to understand the nature of the testamentary act, to understand and recollect the nature and situation of the person's property, or to remember and understand the person's relations to living descendants, spouse and parents and to those whose interests the will affects. A diagnosis such as dementia does not by itself make a will invalid. The question is what the person could understand on the day of signing, which is why medical records, witness accounts and the circumstances of the signing matter so much.

Undue influence. Undue influence is a ground for setting aside a will under Probate Code section 8252. These claims tend to turn on evidence about the relationship between the person who made the will and the person who benefited, who arranged the signing, and how the new document differs from earlier ones.

The statutory presumption. Probate Code section 21380(a) presumes that a provision making a gift is the product of fraud or undue influence when the gift goes to the person who drafted the instrument; to a person who transcribed it, or caused it to be transcribed, while in a fiduciary relationship with the transferor; or to a care custodian of 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. The presumption shifts the burden of proof and can be rebutted by clear and convincing evidence, except that it is conclusive for a gift to the drafter and to the persons section 21380(c) associates with the drafter. A beneficiary who fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees. The presumption does not reach every gift to a caregiver, relative or helper; it applies only to the people and circumstances the statute describes.

Fraud, forgery and revocation. A will may also be challenged on the grounds that the testator was deceived into signing it, that a signature is not genuine, or that the will was revoked before death.

No contest clauses. A no contest clause is a provision that penalizes a beneficiary, usually by forfeiting the gift, for challenging the document. Under Probate Code section 21311(a), such a clause 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 did not belong to the transferor, or against a creditor's claim or an action based on it. Probable cause exists 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 no contest clause does not automatically disinherit everyone who challenges a will or trust.

Deadlines: When a Will Contest Must Be Filed

California has two separate windows for challenging a will, and they work differently.

Before the will is admitted to probate. Under Probate Code section 8250, a 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 of the petition for administration. The persons summoned file a written pleading in response within 30 days after service.

After the will is admitted to probate. Under Probate Code section 8270, within 120 days after a will is admitted to probate, an interested person may petition to revoke the probate of the will, with written objections stating the grounds. That right does not belong to someone who was a party to a will contest or who had actual notice of a will contest in time to join it. Section 8270(b) carves out an exception: 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 an order for final distribution.

The two windows should not be confused. The first is a pre-admission objection with a response deadline triggered by service; the second is a post-admission petition with its own 120-day limit running from the date of admission. Whether the timeline has started, and which window is open, depends on dates in the court file.

Trust Contests and the 120-Day Notice Deadline

When the dispute is over a trust rather than a will, the timing usually starts with a document from the trustee. Under Probate Code section 16061.7(a), a trustee must serve a notification in events that include when a revocable trust, or part of it, becomes irrevocable because of a settlor's death, and whenever the trustee of an irrevocable trust changes. That is a partial list. A settlor is the person who created the trust.

Under Probate Code section 16061.8, a person served with the notification after a settlor's death or similar event 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, or 60 days from the date a copy of the trust's terms is delivered to that person during the 120-day period, whichever is later. Two things trigger the clock: service of the notification, and delivery of the trust terms if requested and delivered within the 120 days. The period does not run from the date of death or from the date the trust became irrevocable, and not every trust contest is governed by this rule. More detail appears in the guide on how to contest a trust.

A separate limitation period governs claims that a trustee breached a duty. 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. Where no account or report discloses it, 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. A contest attacks the trust document; a breach claim attacks how the trustee handled it, and each has its own clock.

Trustee Duties and What Beneficiaries Can Demand

Beneficiaries often reasonably wonder whether a trustee's silence or a particular sale is just unwelcome or actually unlawful. The answer starts with the duties the Probate Code imposes.

Loyalty and self-dealing. Under Probate Code section 16004(a), 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 a transaction in which the trustee has an interest adverse to the beneficiary. Self-dealing is the term for a trustee standing on both sides of a deal, such as buying the trust's house or lending trust money to a relative. Under section 16004(c), a transaction between the trustee and a beneficiary in which the trustee gains an advantage from the beneficiary is presumed to violate the trustee's fiduciary duties; that presumption affects the burden of proof and does not apply to an agreement about hiring or paying the trustee.

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

Accounting. An account is the trustee's formal report of what came in, what went out and what remains. Under Probate Code section 16062, a trustee must generally account at least annually, at termination, 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; a remainder beneficiary who receives nothing until a later event may not be. Section 16064 lists circumstances in which no account is required, including a waiver in the trust instrument, but regardless of a waiver 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. Section 17200(b)(7) allows a petition to compel information if the trustee has failed to provide requested information within 60 days after a beneficiary's reasonable written request and the beneficiary has not received it within the six months before the request. It allows a petition to compel an account 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 and its date often become the first exhibit.

Compensation. If the trust instrument does not set the trustee's pay, the trustee is entitled to reasonable compensation under the circumstances (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, including each beneficiary entitled to an account and each who received the last preceding account. If a beneficiary serves a section 17200 petition before that period ends, the increase is held back until the court orders otherwise or the petition is dismissed (section 15686(c)).

Not every disagreement with a trustee is a breach. Trustees often have discretion, and a decision a beneficiary dislikes may still be within it.

Remedies When a Trustee Breaches a Duty

Probate Code section 16420(a) lets a beneficiary or cotrustee start a proceeding when a trustee commits, or threatens to commit, a breach of trust, for purposes including: compelling the trustee to perform; enjoining the breach; compelling redress by payment of money or otherwise; appointing a receiver or temporary trustee to take over the property; removing the trustee; setting aside the trustee's acts, subject to section 18100; reducing or denying the trustee's compensation; imposing an equitable lien or constructive trust, subject to section 18100; and tracing and recovering property wrongfully disposed of, subject to section 18100. A constructive trust is a court order treating property held by one person as belonging to another. Under section 16420(b), these remedies do not prevent resort to any other appropriate remedy.

Surcharge. A surcharge is a court order making the trustee personally pay for a breach. Under Probate Code section 16440(a), a trustee who commits a breach is chargeable with whichever is appropriate: the 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 had the breach not caused its loss. Surcharge is not automatic. Under section 16440(b), the court may excuse a trustee who acted reasonably and in good faith under the circumstances known to the trustee, in whole or in part, if it would be equitable.

Removal. Under Probate Code section 15642(a), a trustee may be removed according to 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 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 complete. Under Probate Code section 17206, the court may make any orders necessary or proper to dispose of the petition, including appointing a temporary trustee.

Double recovery under section 859. Under Probate Code section 859, 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, or has taken, concealed or disposed of it by 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, and may, in the court's discretion, also be liable for reasonable attorney's fees and costs. Neither the doubling nor fees follow automatically; each depends on the court making those findings. An overview of how these petitions fit together appears on the California trust litigation attorney page.

For a trustee on the receiving end of a petition, these same sections define exposure, and the good-faith excuse in section 16440(b) is part of that picture.

Personal Representatives: Duties and Grounds for Removal

A personal representative is the person the Superior Court appoints to administer a decedent's estate: an executor if named in the will, an administrator if not. Like a trustee, a personal representative is a fiduciary answerable to the court and to the people interested in the estate.

Under Probate Code section 8502, a personal representative may be removed for these causes: having wasted, embezzled, mismanaged or committed a fraud on the estate, or being about to do so; being incapable of properly carrying out the duties of the office or otherwise not qualified for appointment; having wrongfully neglected the estate or long neglected 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.

These petitions often arise when an executor who is also an heir lives in the family house without paying rent, delays a sale, or keeps accounts out of reach. The facts that matter are concrete: what the executor did with estate property, when, and what the estate lost. Where the same person serves as both executor and successor trustee, as is common, a family may face parallel disputes in the same Superior Court, one under the estate removal rules and one under the trust rules, including the court's power under section 17206 to appoint a temporary trustee for the trust side.

Being accused is not the same as being removed. An executor facing a petition has the right to respond, and the court decides whether a statutory cause exists.

What This Site Does — and Does Not — Handle

This site's subject is disputes: will contests, trust contests, trustee and executor misconduct, removal of personal representatives and trustees, beneficiary rights to information and accountings, and related fiduciary litigation in California's Superior Courts.

This site does not cover estate planning, drafting or amending a trust or will, or administering an estate or trust where everyone agrees. Someone who wants to create a trust or handle a quiet, uncontested probate will not find that guidance here. It does not address any other state's law.

Discussing a Contested Probate or Trust Dispute

Contested probate turns on details that rarely appear in a family's version of events: the date a notification was served, the date a will was admitted, what a written request for an account actually said, and who drafted or arranged a late amendment. A consultation about a dispute like this typically looks at the will or trust and its amendments, any trustee's notification and accounts, the court file and its dates, and the specific conduct at issue, so an attorney can say which deadlines and remedies may apply. If nothing is in dispute and the question is how to plan an estate or run a quiet administration, this page is not the resource for it.

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