Probate Litigation Over California Real Property

Why the house is usually the argument

In most California estates the home is the largest asset, and often the only one that counts. That focuses the whole dispute on a single thing. There is no way to divide a house that satisfies everyone. The people involved usually have decades of history with each other and with the property.

It also means the legal questions are property questions wearing probate clothing. Who holds title, that is, whose name the law treats as the owner. Whether a transfer made before death was valid. Whether the property was ever properly funded into the trust, meaning whether the house was ever actually transferred into it.

Section 850 petitions

Probate Code section 850 is the route where the question is whether particular property belongs to a trust or an estate. It is the petition used where someone signed a trust but never transferred the house into it. That is one of the most common failures in California estate planning.

It works the other way too, where property sits in a trust and a claimant says it should not. Either way, the court determines title inside the probate proceeding. You do not have to bring a separate civil action.

Before you file, work out whether the matter is a section 850 petition or a quiet title action. A quiet title action is a civil suit asking a court to settle who owns property. Choosing the wrong vehicle costs time, and a limitation period, which is the deadline for bringing a claim, may not leave you that time.

Trust contests and the 120 days

A revocable trust is one the person who set it up can still change. It becomes irrevocable, meaning it can no longer be changed, usually when that person, the settlor, dies. At that point Probate Code section 16061.7 requires the trustee to serve notification on the beneficiaries and heirs.

That notification starts a clock. Under section 16061.8 a contest must be brought by the later of 120 days after service or 60 days after a copy of the trust terms is delivered during that 120-day period.

If a trustee has sent you a notification and you have concerns about the trust, record both the service date and any later date on which the trust terms were delivered.

Claims against the person in charge

A trustee or personal representative owes duties to the beneficiaries. They must administer the estate according to the instrument, which is the will or trust document. They must account, meaning give a written record of the money in and out. They must deal impartially between the beneficiaries. And they must avoid self-dealing, meaning using the position to benefit themselves.

Where real property is involved the recurring complaints are the same. One beneficiary lives in the property rent free while the estate pays the costs. The property is sold to a friend at a number nobody tested. Years pass without an accounting. Each of those can be addressed, and each is easier to address early than after the property is gone.

The petitions, and which one fits

Probate litigation is not one thing. It is a set of specific proceedings, and choosing the right one matters. They carry different requirements and different deadlines.

A petition under Probate Code section 850 determines whether particular property belongs to a trust or an estate. Use it where a house was never transferred into the trust. Use it as well where property held in a trust is said not to belong there.

A contest challenges whether a will or trust is valid at all. Common grounds are these four. Lack of capacity means the person did not understand what they were signing. Undue influence means someone pressured them into it. Fraud means they were deceived. Improper execution means the document was not signed the way the law requires. Probate Code sections 6110 and 6111 set out how a will must be executed. They cover a witnessed will, and also a holographic will, which is one written out in the testator's own hand. The testator is the person making the will.

A petition to remove a trustee or personal representative addresses conduct rather than documents. A petition to compel an accounting addresses silence. It asks the court to order that written record of the money.

A creditor's claim is a claim for a debt against the estate. Those claims, and disputes about them, follow their own track and their own deadlines.

The 120 days, and how people lose it

A revocable trust can be changed while the person who made it is alive. On their death it usually becomes irrevocable, meaning fixed. Probate Code section 16061.7 then requires the trustee to serve notification on beneficiaries and heirs. Section 16061.8 requires a contest by the later of 120 days after service or 60 days after a copy of the trust terms is delivered during that 120-day period.

The notification often arrives looking like an administrative letter rather than the start of a deadline. People read it, put it aside, and raise their concerns after the applicable period has run.

If a trustee has served you with a notification and something about the trust concerns you, record both dates and get advice promptly, even if you are undecided.

Undue influence, and what evidence looks like

Undue influence claims are common, and they are hard to prove. The one person who could explain the change is dead, and the conduct alleged happened in private.

What tends to establish it is a pattern rather than an event. A change late in life that departs sharply from a plan the person had held for years. A change made at a time of dependence or declining health. A change that benefits someone who controlled access to the person, arranged the lawyer, or was present when the documents were signed.

So the evidence is medical records, the file and notes of the attorney who drafted the document, the circumstances in which it was signed, and the history of the prior estate plan. The prior plan matters most. It establishes what the person wanted when nobody was influencing them.

Where these are heard

Probate matters are heard in the superior court of the county where the decedent resided. The decedent is the person who died. That is often, but not always, the county where the property sits. Where the property is in a different county to the estate, the two proceedings can end up in different courthouses. That is worth identifying at the outset.

After the correct county is identified under the applicable probate or trust statute, the superior court's current assignment rules determine the courthouse and department.

This article is general information about California law and is not legal advice for any specific situation. If you are dealing with this issue, the facts of your matter will change the analysis.