San Diego Trust Litigation Attorney

Trust litigation in San Diego County is a court case in the Superior Court of California, County of San Diego, over a trust that someone disputes: whether it is valid, whether a trustee broke a duty, whether a beneficiary must be given an account, or how trust property is recovered.

Most people searching for a San Diego trust litigation attorney are not curious about trusts in the abstract. A parent has died, and the trust that was supposed to settle things has become the source of the conflict. A sibling is now the trustee and has stopped answering questions. A late amendment left most of the estate to someone who arrived in the last year of a parent's life. Or a house sits unsold while one family member lives in it rent-free. The reader is trying to work out whether what is happening is simply frustrating or is something a court can actually address, and what the deadlines are before deciding anything.

This page walks through how those disputes work under California law in San Diego County: contests, trustee duties, petitions, property recovery, will contests, and what to look for in counsel.

What Trust Litigation in San Diego County Actually Involves

Under Probate Code section 17200(a), a trustee or beneficiary of a trust may generally petition the court concerning the internal affairs of the trust or to determine whether the trust exists. In San Diego County, that petition is filed in the Superior Court of California, County of San Diego. The court's probate side hears these matters, not a separate trust tribunal. A beneficiary is a person entitled to receive something from the trust. A trustee is the person or institution holding and managing trust property for the beneficiaries.

Section 17200(b) lists proceedings that count as "internal affairs," including construing what the trust document means, determining the validity of a trust provision, settling the trustee's accounts and passing on the trustee's acts, instructing the trustee, and compelling the trustee to provide a copy of the trust terms. The statute says the list is "not limited to" those purposes. Other disputes can be brought the same way. A fuller walk-through of that procedure appears on the page about the Probate Code 17200 petition.

In practice, San Diego County trust disputes tend to fall into a handful of patterns:

• Trust contests, which challenge whether a trust or an amendment is valid, often on grounds of undue influence, lack of capacity, fraud or forgery.
• Breach of fiduciary duty claims, where a trustee is accused of self-dealing, mismanagement or favoring one beneficiary.
• Accounting and information disputes, where a trustee will not say what the trust holds or where the money went.
• Trustee removal, where a beneficiary or cotrustee asks the court to replace the person in charge.
• Property recovery, where trust or estate assets such as a house, accounts or a family business were taken or transferred away.

This site addresses disputes only. Setting up a trust, drafting a will, or administering a trust when nobody disagrees is a different subject, and this page does not cover it.

Trust Contests: Deadlines and What Triggers Them

The deadline to contest a trust in California usually starts with a document, the trustee's notification. Probate Code section 16061.7(a) requires the trustee to serve that notification in specified events. These include when a revocable trust, or part of one, becomes irrevocable because a settlor died (the settlor is the person who created the trust), and whenever the trustee of an irrevocable trust changes. The list in the statute is partial. It contains other triggering events as well.

Once a person has been served with the notification under section 16061.7(a)(1), Probate Code section 16061.8 sets the contest deadline. That person 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 them during that 120-day period, whichever is later. The first period is triggered by service of the notification. The second is triggered by delivery of the trust's terms, and it applies only if that delivery happens within the 120 days. The clock does not run from the date of death. For a reader holding a notification dated weeks ago, the date on the proof of service matters more than anything else in the file. The page on how to contest a trust covers the filing itself.

Presumptions that shift the burden. Probate Code section 21380 presumes that a provision making a gift to certain people is the product of fraud or undue influence. Those people include:

• the person who drafted the instrument;
• a person who transcribed it, or caused it to be transcribed, while in a fiduciary relationship with the person making the gift;
• 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 affects the burden of proof, meaning the beneficiary must disprove it. It can be rebutted by clear and convincing evidence. However, it is conclusive for a gift to the drafter and to certain people the statute associates with the drafter. A beneficiary who fails to rebut the presumption bears all costs of the proceeding, including reasonable attorney's fees. Not every gift to a caregiver, relative or helper is presumed invalid. The presumption reaches only the people and timeframes the statute describes.

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

• 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, but only if the clause expressly says so;
• a creditor's claim or an action based on it, but only if the clause expressly says so.

Section 21311(b) says 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 trust.

Trustee Duties and When a Breach Becomes a Court Matter

A trustee owes each beneficiary a set of duties California law spells out. Not every disagreement with a trustee is a breach, though. A trustee who sells a property at a price a beneficiary dislikes may still have acted within the trust's terms. These are the duties that most often matter in San Diego County disputes.

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. A trustee also may not take part in a transaction in which the trustee has an interest adverse to the beneficiary. This is the rule against self-dealing. Under section 16004(c), a transaction between the trustee and a beneficiary, by which the trustee gains an advantage from that beneficiary, is presumed to violate the trustee's fiduciary duties. That presumption affects the burden of proof. It does not apply to an agreement about the trustee's hiring or compensation.

Section 16060 requires the trustee to keep the beneficiaries reasonably informed of the trust and its administration. Section 16061 generally requires the trustee, on a beneficiary's reasonable request, to report information about the administration that is relevant to that beneficiary's interest, subject to exceptions in section 16069.

The duty to account is narrower than many beneficiaries assume. Under Probate Code section 16062, the trustee generally must account at least annually, at the termination of the trust, and upon a change of trustee. 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. Section 16064 allows a trust instrument or a beneficiary's writing to waive the account. Even then, the court may compel the trustee to account upon a showing that it is reasonably likely a material breach of the trust has occurred.

When a trustee commits or threatens to commit a breach of trust, Probate Code section 16420(a) lets a beneficiary or cotrustee bring a proceeding to do any of the following:

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

A constructive trust is a court order treating property held by someone as belonging to the trust. Section 16420(b) says these remedies do not prevent resort to any other appropriate remedy.

A finding of breach carries a measure of liability, called a surcharge. Under Probate Code section 16440(a), a trustee who commits a breach is chargeable with whichever of the following 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 that would have accrued to the trust.

A 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 that would be equitable. Trustees facing these allegations in San Diego County have that defense available, and beneficiaries can expect it to be raised.

Petitioning the Court: Accounts, Information, and Trustee Removal

Many beneficiaries reasonably wonder how long they must wait before going to court over silence. Probate Code section 17200(b)(7) answers that for two common situations:

• Petition to compel information. Available if the trustee has not provided 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.
• Petition to compel an account. Available if 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.

Both depend on a written request, which is why the paper trail matters. Once a petition is before the Superior Court in San Diego County, Probate Code section 17206 lets the court make any orders necessary or proper to dispose of the matters presented, including appointing a temporary trustee to administer the trust in whole or in part.

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 in section 15642(b) include:

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

That list is partial. The statute recognizes other grounds.

Compensation disputes have their own rules. Under Probate Code section 15681, if the trust instrument does not specify the trustee's compensation, the trustee is entitled to reasonable compensation under the circumstances. California law also bars a trustee from charging an increased fee without first giving at least 60 days' written notice to the beneficiaries the statute identifies. If one of those beneficiaries serves a section 17200 petition before the 60 days run out, the increase is held back until the court orders otherwise or the petition is dismissed.

Timing limits apply to breach claims, too. Under Probate Code section 16460(a), a claim for breach of trust is generally 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 it or reasonably should have looked into it.

Recovering Property: Probate Code Section 859 and Double Damages

Disputes over a house, a brokerage account or a family business often turn on recovering the asset itself. Probate Code section 859 adds a significant consequence to that recovery. If a court finds that a person did any of the following with property belonging to a trust or a decedent's estate (among other protected owners), that person is liable for twice the value of the property recovered by an action under that part of the Probate Code:

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

The court may also, in its discretion, award reasonable attorney's fees and costs against a person liable under section 859. Neither the doubled amount nor the fees are automatic. Each depends on the court's findings, and the fees depend on its discretion. Section 859 remedies are in addition to other available remedies.

When the person accused is an executor or administrator, called a personal representative, Probate Code section 8502 lists the causes for removal from office:

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

Will Contests and Testamentary Capacity in San Diego Probate

Some San Diego County disputes involve a will instead of, or alongside, a trust. These are also heard by the Superior Court of California, County of San Diego.

Testamentary capacity, meaning the mental ability to make a valid will, is tested at the time the will is made. Under Probate Code section 6100.5, a person lacks that capacity if, at that time, they could not understand the nature of the act; could not understand and recollect the nature and situation of their property; or could not remember and understand their relations to living descendants, spouse and parents and others whose interests the will affects. A person also lacks capacity if they suffered from a mental health disorder with delusions or hallucinations that caused them to leave property in a way they otherwise would not have. A diagnosis alone, such as dementia, does not make a will invalid. The question is what the person could understand when they signed.

A will contest before the will is admitted to probate begins, under Probate Code section 8250, with filing an objection to probate. A summons is then issued and served with the objection. The persons summoned must file a written pleading in response within 30 days after service.

After admission, Probate Code section 8270 gives an interested person 120 days after the will is admitted to petition to revoke its probate. This option is not available to a party to an earlier will contest, or to someone who had actual notice of one in time to join it. 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.

What to Look for When Evaluating Trust Litigation Counsel in San Diego

People in a San Diego County trust dispute who are weighing counsel often consider a few things:

• whether the attorney's work centers on contested California trust and probate matters;
• whether the attorney is familiar with how the Superior Court of California, County of San Diego handles probate petitions;
• whether the attorney can explain the relevant Probate Code sections, such as the contest deadline or the accounting rules, in plain terms.

Trust litigation is a different discipline from estate planning. A practitioner who mainly drafts trusts may not have the courtroom background a contested matter calls for. The overview of California trust litigation describes how these cases unfold statewide.

Discussing a San Diego County Trust Dispute

A trust dispute in San Diego County usually turns on a few documents and dates: the trustee's notification and its proof of service, the trust and any late amendments, written requests for information or an account, any accounts actually received, and records of transfers involving the house, accounts or business. A consultation about a dispute like this typically looks at those items, and at who did what with the property and when. Readers whose question is how to set up or update their own trust are looking at a different subject than this page covers. To discuss a contested trust or estate with an attorney, contact California Trust Litigation Lawyers to request a consultation about your dispute.