Orange County Trust Litigation Attorney

Trust litigation in Orange County is a court dispute over whether a trust is valid, how a trustee is managing it, or whether a beneficiary is receiving what the trust provides. The Superior Court of California, County of Orange, hears these cases under the California Probate Code. They usually begin with a petition.

Most people facing a trust dispute in Orange County did not expect to be in one. A parent has died. A sibling now holds the keys, the bank passwords and the only copy of the trust. Months go by with no account and no distribution, or a trust amendment appears that nobody had heard of, signed when a parent was frail and someone new was close by. The questions that follow are practical ones. Is this a legal problem or a family one? Is there a deadline? What can a court actually order? This page answers those questions for California law and the Orange County court. It also covers the position of a trustee or executor who is the one being accused.

What Trust Litigation in Orange County Actually Involves

Trust litigation means contested court proceedings over the validity, administration or enforcement of a trust. It is not estate planning, and it is not the ordinary work of administering a trust when everyone agrees. A dispute becomes litigation when someone asks a judge to decide something the family cannot resolve. That might be whether a document is valid, whether a trustee has breached a duty, or who receives a piece of property.

For trusts and probate estates in this county, that judge sits in the Superior Court of California, County of Orange. The parties vary. They include:

• beneficiaries, meaning the people a trust names to receive income or property
• trustees and co-trustees, meaning the people who hold and manage trust property for the beneficiaries
• heirs, meaning the people entitled to inherit under California law
• personal representatives, meaning the executor or administrator a probate court appoints to run a decedent's estate

These disputes arise at different times. Some start while the settlor (the person who created the trust) is still alive, often over a late change to the trust or control of assets. Many start at death, when a revocable trust becomes irrevocable and the successor trustee takes over. Others surface years into administration, when a beneficiary finally sees an account and the numbers do not add up. The broader framework is set out on this site's overview of California trust litigation.

Types of Trust Disputes Heard in Orange County

Trust contests. A trust contest challenges whether a trust or an amendment is valid. Common grounds include lack of capacity, undue influence, fraud and forgery. The process is described in more detail in this site's guide on how to contest a trust.

The donative transfer presumption. Probate Code section 21380 presumes certain gifts to be the product of fraud or undue influence. A "donative transfer" means a gift made by a trust, will or other instrument. The presumption applies to gifts to the following people, among others the section names:

• the person who drafted the instrument
• a person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed
• a care custodian of a dependent adult, 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. It can generally be rebutted by clear and convincing evidence. It is conclusive, however, for a gift to the drafter and to certain people associated with the drafter. A beneficiary who fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees. This rule does not reach every gift to a relative, friend or helper.

No contest clauses. A no contest clause is a provision that penalizes a beneficiary who challenges the instrument. Under Probate Code section 21311(a), the clause may be enforced only against:

• a direct contest brought without probable cause
• a pleading that challenges a transfer of property on the ground that the property did not belong to the transferor, but only if the clause expressly says so
• a creditor's claim or an action based on one, but only if the clause expressly says so

Under section 21311(b), 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 relief will be granted after an opportunity for further investigation or discovery. A no contest clause does not automatically disinherit everyone who challenges a trust.

Trustee misconduct. These disputes allege a breach of fiduciary duty. Examples include self-dealing, failure to account, failure to keep beneficiaries informed, and delay in distributing.

Petitions about the trust's internal affairs. Under Probate Code section 17200(a), a trustee or beneficiary may generally petition the court about the internal affairs of a trust or to determine whether a trust exists. These petitions include requests to compel the trustee to provide information or an account. This site's page on the Probate Code 17200 petition explains the mechanics.

Removal of a trustee. Removal is addressed by Probate Code section 15642, discussed below.

Remedies for breach. When a trustee commits or threatens a breach of trust, Probate Code section 16420(a) lets a beneficiary or co-trustee ask the court to do any of the following that is appropriate:

• compel the trustee to perform the trustee's duties
• enjoin the breach
• compel the trustee to redress the breach by payment of money or otherwise
• appoint a receiver or temporary trustee
• remove the trustee
• subject to section 18100, set aside the trustee's acts
• reduce or deny the trustee's compensation
• subject to section 18100, impose an equitable lien or constructive trust on trust property
• subject to section 18100, trace and recover property that was wrongfully disposed of

Probate estate disputes. Under Probate Code section 8502, a personal representative may be removed for causes that include the following:

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

Probate Code section 859 provides a remedy when property belonging to a trust or a decedent's estate, among others, has been wrongfully taken. If the court finds that a person took, concealed or disposed of the property in bad faith, did so by undue influence in bad faith, or did so through elder or dependent adult financial abuse, that person is liable for twice the value of the property recovered. The court may, in its discretion, also award reasonable attorney's fees and costs against that person. Neither the double recovery nor the fees are automatic. Each depends on the findings the court makes.

Will contests. Before a will is admitted to probate, a contest begins with an objection to probate. A summons is then issued and served, and the persons served file a written response within 30 days after service (Probate Code section 8250). Testamentary capacity is judged at the time the will was made. A diagnosis such as dementia does not, by itself, make a will invalid.

Deadlines That Govern Trust and Probate Disputes

Deadlines often matter more than the merits in these cases. The rules below are the ones most likely to affect someone in an Orange County dispute.

The trust contest deadline. A trustee must serve a "notification by the trustee" in the events listed in Probate Code section 16061.7(a). Those events include when a revocable trust becomes irrevocable because a settlor has died, and whenever the trustee of an irrevocable trust changes. The section lists other events as well.

A person served with the notification under section 16061.7(a)(1) cannot bring an action to contest the trust after whichever of these is later:

• 120 days from the date the notification is served
• 60 days from the date a copy of the terms of the trust is delivered to the person during that 120-day period

Under Probate Code section 16061.8, the clock is triggered by service of the notification or by delivery of the trust terms. It does not run from the date of death.

Breach of trust claims. Probate Code section 16460(a) sets two branches, each with a three-year period:

• If the beneficiary received an interim or final account or other written report that adequately disclosed the claim, the claim is barred unless a proceeding begins within three years after the beneficiary received it.
• If no account or report adequately 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.

Compelling information or an account. A beneficiary may petition to compel information if two conditions are met: the trustee has not provided the requested information within 60 days after the beneficiary's reasonable written request, and the beneficiary has not received that information within the six months before the request. A petition to compel an account works the same way. The trustee must have failed to provide a requested account within 60 days after a written request, and no account must have been made within the six months before the request.

Revoking probate of a will. Within 120 days after a will is admitted to probate, an interested person may petition to revoke the probate under Probate Code section 8270. This option is not available to a party to an earlier will contest, or to a person who had actual notice of that contest in time to join it. A separate provision extends the time for a person who was a minor or incompetent without a guardian or conservator.

Trustee fee increases. A trustee may not charge an increased fee without first giving at least 60 days' written notice to the beneficiaries entitled to it. If a petition under section 17200 is served before that period ends, the increase is held back until the court orders otherwise or the petition is dismissed.

Trustee Duties and What Beneficiaries Can Demand

A trustee in Orange County owes the same duties as a trustee anywhere in California, and the Probate Code spells them out.

The duty against self-dealing. Under section 16004(a), the trustee may not use or deal with trust property for the trustee's own profit or for any purpose unconnected with the trust. The trustee also may not take part in a transaction in which the trustee has an interest adverse to the beneficiary. A sale of the family house to the trustee's own spouse is the kind of transaction that raises this issue.

Under section 16004(c), a transaction between trustee and beneficiary in which the trustee gains an advantage is presumed to violate the trustee's fiduciary duties. That presumption shifts the burden of proof to the trustee. It does not apply to an agreement about hiring or paying the trustee.

The duty to inform and report. Under section 16060, the trustee must keep the beneficiaries reasonably informed of the trust and its administration. The trustee must also generally report requested information relevant to a beneficiary's interest when the beneficiary makes a reasonable request.

The duty to account. Under section 16062, the trustee must account at least annually, when the trust terminates, and when the trustee changes. Two limits apply:

• The duty runs only 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.
• The section exempts certain older trusts, including living trusts created by instruments executed before July 1, 1987, and contains other exceptions.

Even where a trust instrument or a beneficiary's own writing waives the account, the court may compel the trustee to account if it is reasonably likely that a material breach of the trust has occurred.

Compensation. If the trust instrument does not set the trustee's compensation, the trustee is entitled to reasonable compensation under the circumstances (section 15681).

Surcharge. A surcharge is a money judgment against a trustee for a breach. Under section 16440(a), a trustee who commits a breach is chargeable with whichever of these is appropriate:

• any loss or depreciation in value resulting from the breach, with interest
• any profit the trustee made through the breach, with interest
• any profit the trust would have earned but lost because of the breach

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. A surcharge is not automatic.

Trustees reading this page often feel they are being judged for decisions made in good faith under real pressure. The law takes that into account in two ways. Not every disagreement with a trustee is a breach of trust, and the good-faith excuse exists for exactly that reason.

How California Trust Litigation Works in Practice

Most disputes start with a petition filed in the Superior Court of California, County of Orange, under section 17200 or a related provision. The proceedings section 17200(b) lists are examples, not a complete list. They include:

• construing the trust's terms
• determining the validity of a trust provision
• settling accounts and passing on the trustee's acts
• instructing the trustee
• compelling the trustee to provide the trust's terms

Once a petition is before it, the court has broad power. Under section 17206, it may make any orders necessary or proper to dispose of the matters presented, including appointing a temporary trustee to run the trust in whole or in part. A trustee may be removed under the trust instrument, by the court on its own motion, or on petition of a settlor, co-trustee or beneficiary (section 15642(a)). The grounds listed in section 15642(b) include:

• a breach of trust
• insolvency or unfitness to administer the trust
• hostility or lack of cooperation among co-trustees that impairs administration
• failing or declining to act
• excessive compensation

The statute's remedies are also not the only ones available. Section 16420(b) preserves any other appropriate remedy under statute or common law.

In practice, the evidence decides these cases. The key documents are usually:

• the trust and every amendment
• the notification by the trustee and the date it was served
• written requests for information and any replies
• bank and brokerage statements
• deeds and escrow files
• medical records from the period when documents were signed
• the trustee's accounts, if any exist

Whoever can tie dates to documents is usually in the stronger position.

What California Trust Litigation Covers — and What It Does Not

This site addresses disputes. That includes contested trust validity, trustee and executor misconduct, enforcement of beneficiary rights, probate estate disputes, will contests and related fiduciary litigation under California law.

This site does not cover:

• drafting or funding a trust
• estate planning
• trust or probate administration where nobody disputes anything
• disputes governed by another state's law
• trusts or inheritances as property issues in a divorce

Someone whose question is how to set up a trust, or how to wrap up an estate that no one contests, is asking an estate-planning or administration question rather than a litigation one. That calls for a different kind of attorney than this page describes.

Connect With an Orange County Trust Litigation Attorney

A trust dispute in Orange County usually turns on a small number of facts. These include when the notification was served, what the trust and its amendments actually say, what written requests were made and when, and where the money or the house went. A consultation about a dispute like this typically goes through those documents, those dates and the conduct at issue with a California-licensed attorney. That attorney decides independently whether to respond. If the question is really about planning an estate or administering one that no one contests, that is a different conversation from the one this page describes.

To discuss a trust, probate or inheritance dispute with an attorney, request a consultation about your dispute through California Trust Litigation Lawyers.