Probate Litigation Attorneys

What gets fought about

Most contested estates are contested about a house. In a typical California estate it is the largest asset, and often the only significant one. There is no way to divide it that satisfies everyone.

The same disputes recur. Whether a will or trust is valid. Whether particular property belongs to the estate or the trust at all. Whether the person in charge is doing their job. And what happens to the property when the beneficiaries, the people due to inherit, want different things.

The proceedings, and choosing the right one

A petition under Probate Code section 850 asks the court to decide whether particular property belongs to a trust or to an estate. A petition is simply a written request to the court. This is the route when a house was never transferred into a trust that was supposed to hold it. It is also the route when property sitting in a trust is said not to belong there.

A contest challenges the instrument itself, meaning the will or trust document. The grounds include lack of capacity, meaning the person did not understand what they were signing. They also include undue influence, fraud and improper execution. Probate Code sections 6110 and 6111 set out how a will must be executed, that is, signed and witnessed. They cover a holographic will as well, which is one written in the testator's own hand.

A petition to remove a trustee or personal representative addresses conduct. The trustee is the person who runs the trust, and the personal representative is the person who runs the estate. A petition to compel an accounting addresses silence. An accounting is a written record of what came in, what went out, and what is left.

Each of these carries its own requirements and its own deadlines. So identifying the right one before filing matters.

The 120 days that end most contests

A revocable trust is one the person who set it up could still change. It becomes irrevocable, meaning fixed, usually on death. At that point Probate Code section 16061.7 requires the trustee to serve notification on beneficiaries and heirs, which means sending them formal notice. Under section 16061.8, a contest must be brought by the later of 120 days after that notification is served or 60 days after a copy of the trust terms is delivered during the 120-day period.

The period is short for a family that has just had a death, and the notification frequently arrives looking like an administrative letter. People read it, set it aside, and raise their concerns after the applicable period has run.

If you have received a trustee's notification and something concerns you, record both the service date and any later date on which the trust terms were delivered. Get advice promptly even if you have not decided what to do.

Proving undue influence

These claims are common and difficult to prove. The one person who could explain the change has died, and the conduct happened in private.

What establishes it is a pattern rather than a single event. Look for a change late in life that departs sharply from a plan the person had held for years. Look at whether they were dependent on someone, or in declining health, when they made it. Then look at who gained: often someone who controlled access, arranged the lawyer, or was present at signing.

So the evidence is medical records, the drafting attorney's file and notes, the circumstances of execution, and the prior estate plan. The prior plan matters most. It shows what the person wanted when nobody was influencing them.

Where these are heard

These are heard in the probate department of the superior court for the county where the decedent resided. The decedent is the person who died. Where the real property is in another county, the property questions can end up elsewhere. Identifying that at the outset avoids a wasted filing.

The superior court's current assignment rules determine the courthouse and department after the correct county is identified.