What we do: California Trust Contests, Will Contests, and Protecting Trust and Will Beneficiaries

I’ve been planning to write more this year about California Trust, Will, and Probate litigation. But I’ve been hesitant to do so because:

  • This is a very complex area of the law involving even more complex fact scenarios, which may or may not apply toSign of Justice a particular case.
  • I’m worried that I may not be careful enough (or effective) in explaining how Trust and Will Contests work, or how abused Trust beneficiaries can protect themselves from bad acting Trustees and Executors.
  • And, I’m worried that readers of this blog may read the blog post too quickly and assume certain truths that do not exist.

But everyday I get phone calls from Trust and Will beneficiaries who have been wrongfully removed from their parents’, family member’s, or loved one’s Trust or Will by some bad actor—usually another family member, loved one, or “friend” of the family. I also get phone calls from Trust or Will beneficiaries who are being abused by a Trustee or Executor of a California Trust or Will. I’m also obsessed with Trust, Will, and Probate Litigation—litigation involving the rights of Trust and Will beneficiaries.

So, despite my reservations, I’ve decided to write on one narrow topic in the Trust and Estate arena that I’m very passionate about—Inheritance rights, Trust Contests, Will contests, and Abused Trust or Will Beneficiaries.

Please note, I cannot fully cover each and every topic relating to Trust or Will litigation—including your case (since I know nothing about your case). As such, you should not read this blog or any of its posts and consider it to be legal advice, or even legally correct.

With that being said, let’s start off by defining the problem.

What is a “Trust Contest” or “Will Contest”? And what is an “abused beneficiary.” All good questions.

Legal Concept No. 1: California Trust Contests

Let me begin with an example: There are roughly eight million people residing in the San Francisco Bay Area. Many of these Bay Area residents (including parents, other family members, spouses, significant others, etc.) set up estate plans consisting of a Trust and Will. For example, parents usually set up a Trust directing where their assets (all assets including homes, personal property, financial accounts, etc.) go at their deaths. In most cases, after the parents die, the parents’ assets are distributed to their children or other family members or friends—as is directed by the Trust terms. In the majority of cases this transfer of assets causes no significant problems.

However, in some cases problems arise: For example, some bad actor gets to the parents before they die who convinces or coerces them to change the Trust to disinherit or significantly reduce the gifts of property intended for Trust beneficiaries (which can include children, other family members, or friends). In most of these cases the bad actor ends up getting the bulk of the parents’ Trust at the cost of the rightful Trust beneficiaries.

What is a child, family member, or friend who was supposed to get assets under a Trust to do when they’ve ostensibly been disinherited from the Trust? That’s where the California Trust Contest comes in. A Trust Contest, in simple terms, is a lawsuit filed against some bad actor for their bad acts—in this case, for convincing or coercing a parent, family member, or friend to disinherit a Trust beneficiary.

The Trust Beneficiary files the Trust Contest and asks the Probate Court to invalidate the change to the Parents’ Trust. Once the Trust Contest is filed there is written discovery (more on that in another post), depositions (more on that in another post), and procedural and substantive motions (more on that in another post) that must be completed. Once the “discovery” and “motion” phase of the litigation is complete a trial date will be set. Then a trial (just like the ones you’ve seen on CNN and other news and legal channels) takes place in front of a judge (or perhaps a jury if there is a financial elder abuse claim made) and a decision is made at the end of the trial to validate or invalidate the change made to the Parents’ trust. That, in a nutshell, is a Trust Contest under California law.

Legal Concept No. 2: California Will Contests

California Will Contests are similar to Trust Contests, but are much more procedurally complex. With a Will Contest the beneficiary is required to file his/her own Petition for Probate. Once the Petition for Probate is filed, the beneficiary must then file a Will Contest, which is very similar to a Trust Contest.  The same rules of litigation that apply to a Trust Contest likewise apply to a Will Contest.

Legal Concept No. 3: Abused Trust and Will Beneficiaries

Most of my clients I would consider to be abused Trust or Will beneficiaries. They are abused because a Trustee or Executor (the person who has power over a Trust or Will) abuses their place of power, which injures the beneficiary’s interest in the Trust or Will. This abuse by a Trustee or Executor takes many forms, including, failing to communicate with the Trust or Will beneficiaries, failing to provide information about the Trust or Will assets and liabilities, or when the Trustee or    Executor chooses to use the Trust or Will assets for himself/herself at the cost of the other Trust or Will beneficiaries (in many cases we see Trustees and Executors moving into the parents’ home to live there rent free during the Trust or Will administration).

What can a Trust or Will beneficiary do if they are being abused by the Trustee or Executor? File an action to have the Trustee or Executor removed from office, or ask a court to make the Trustee or Executor pay money to the beneficiary who has been harmed by the Trustee’s or Executor’s unlawful acts.

I’ll pick up next time in exploring in further detail the litigation process relating to Trust Contests, Will Contests, and Abused Beneficiary litigation.