No-Contest Clauses in California Trusts — What Triggers Forfeiture (and What Doesn’t)

1. What a No-Contest Clause Is — and What It Is Not

A no-contest clause is a provision in a trust or will that purports to penalize a beneficiary if they challenge the document or certain actions taken under it. The penalty is usually forfeiture of all or part of the beneficiary’s interest.

What a no-contest clause is not is a blanket gag order that prevents beneficiaries from enforcing their rights. California law sharply limits when no-contest clauses are enforceable. Many beneficiaries — and many trustees — mistakenly believe that any lawsuit, objection, or demand for information automatically triggers forfeiture. That is wrong.

Modern California no-contest law is intentionally narrow. Courts do not enforce these clauses broadly. Instead, they enforce them only in specific, statutorily defined circumstances. Trustees frequently invoke no-contest clauses as a threat to deter scrutiny, even when the clause would not apply. Beneficiaries who believe those threats often surrender valid claims unnecessarily.

What this means for you: before filing anything, you must (1) read the exact clause language, (2) identify whether your proposed petition is an enforcement action or an invalidity attack, and (3) evaluate whether you have enough evidence at filing to satisfy probable cause if you are bringing a direct contest. No-contest risk is not managed by fear — it is managed by precision.

2. California’s No-Contest Statute: The Governing Framework

California’s no-contest law is governed by Probate Code sections 21310 through 21315. These statutes reshaped how no-contest clauses operate. Under this framework, a no-contest clause is enforceable only against: (1) a “direct contest” that lacks probable cause, (2) a property claim, and (3) a creditor’s claim. Even then, forfeiture occurs only if the clause expressly applies to the type of claim being asserted.

What Is a “Direct Contest”

A direct contest is a pleading that alleges the invalidity of a trust or will based on lack of capacity, undue influence, fraud, duress, improper execution, revocation, or similar invalidity-based grounds recognized by statute.

If the action does not allege invalidity on those grounds, it is not a direct contest for no-contest purposes.

The Role of Express Language

Even if a beneficiary files a direct contest, the no-contest clause must expressly apply to that type of contest. General or vague language is not enough. Courts strictly construe no-contest clauses against forfeiture. Ambiguity is resolved in favor of the beneficiary.

Probable Cause Protection

Even where a direct contest is filed and the clause applies, forfeiture occurs only if the contest was brought without probable cause. Probable cause is evaluated objectively based on the facts known at the time the contest was initiated — not on whether the beneficiary ultimately wins.

What Is a Property Claim

A property claim is a pleading that alleges the trust (or the transferor) did not own the property at the time it was transferred, or that the property should not be treated as trust property. This category can trigger a no-contest clause only if the clause expressly covers property claims.

Important note: unlike direct contests, property-claim triggers are not protected by the probable cause exception. If a pleading qualifies as a property claim and the clause expressly applies to property claims, forfeiture risk is real even if you believe you are “right.”

What Is a Creditor’s Claim

A creditor’s claim is a claim for money or liability asserted against the decedent’s estate or trust (for example: compensation, reimbursement, loan repayment, or damages), including filing such a claim or prosecuting an action based on it. This category can trigger a no-contest clause only if the clause expressly covers creditor’s claims.

Important note: like property claims, creditor’s-claim triggers are not protected by the probable cause exception. If the claim qualifies and the clause expressly applies, the risk is not avoided by good intentions.

3. Actions That Actually Trigger a No-Contest Clause

Because California law is narrow, relatively few actions actually trigger forfeiture — and only under specific conditions.

Filing a Direct Contest Without Probable Cause

The most common triggering event is filing a direct contest alleging invalidity of the trust or will without probable cause, where the no-contest clause expressly applies to that type of contest.

This generally requires three elements:

1. The action is a direct contest as defined by statute
2. The no-contest clause expressly applies to that contest
3. The contest was filed without probable cause

All three must be present. If any element is missing, forfeiture does not occur.

Challenging the Instrument’s Validity

Claims that seek to invalidate the trust or will — such as undue influence or lack of capacity — fall within direct contests. That does not mean such claims are prohibited. It means they must be evaluated for probable cause and statutory fit before proceeding.

Claims Framed as Invalidity Attacks

Courts look at substance, not labels. A claim styled as something else but functionally attacking validity may still be treated as a direct contest. This is why careful pleading matters. Poorly framed petitions can unintentionally create no-contest risk where none was necessary.

4. Actions That Do Not Trigger a No-Contest Clause

One of the most persistent myths in trust litigation is that “any lawsuit triggers the no-contest clause.” Under California law, that is simply not true. Most trust enforcement actions do not trigger a no-contest clause, even when they are aggressively litigated.

Enforcement Actions Are Not Contests

Actions that seek to enforce the terms of an existing trust — rather than invalidate it — are not direct contests. These commonly include:

• Trust accounting objections
• Trustee surcharge claims
• Petitions to compel distributions
• Trustee removal or suspension
• Petitions to enforce fiduciary duties
• Demands for information and disclosure

These actions accept the validity of the trust and ask the court to require the trustee to follow it. Because they do not allege invalidity, they generally fall outside the no-contest statute.

Challenging Trustee Conduct Is Not Challenging the Trust

Trustees often argue that any challenge to their actions is an attack on the trust itself. Courts reject this framing. A claim that a trustee mismanaged assets, overpaid themselves, or failed to distribute does not question whether the trust is valid. It questions whether the trustee complied with fiduciary duties.

Interpretation and Clarification Petitions

Petitions that ask the court to interpret ambiguous provisions, determine beneficiary rights, or clarify distribution terms generally do not trigger no-contest clauses — so long as the petition does not allege invalidity.

5. Probable Cause — The Most Misunderstood Protection

Probable cause is the statutory safety valve that allows beneficiaries to bring legitimate challenges without forfeiting their inheritance. It is not a “good faith” standard, and it is not judged in hindsight.

What Probable Cause Means

Probable cause exists when, at the time the contest is initiated, the facts known to the beneficiary would cause a reasonable person to believe there is a reasonable likelihood that the challenge will succeed.

What Probable Cause Is Not

Probable cause is not mere suspicion, family conflict, disagreement with the outcome, or hope that discovery will uncover wrongdoing. Courts assess probable cause based on available facts — medical records, financial documents, witness statements — not speculation.

Timing Matters

Probable cause is evaluated as of the moment the contest is filed. Evidence discovered later does not retroactively create probable cause. This is why pre-filing investigation is critical. Filing first and hoping discovery will justify the claim later is a dangerous strategy in no-contest cases.

Why Trustees Get This Wrong

Trustees frequently argue that losing the case proves lack of probable cause. That is incorrect. A contest can fail and still have been supported by probable cause at the time it was filed.

6. How Courts Decide No-Contest Issues Procedurally

No-contest issues are often decided after the merits of the underlying case are determined. Courts focus on the pleadings, the language of the clause, the statutory definitions, and the evidence available at filing.

The Procedural Posture

A trustee or beneficiary may petition the court to determine whether a particular action triggers a no-contest clause. In many cases, the issue is litigated after the underlying matter resolves. If the underlying instrument is invalidated, forfeiture analysis may become irrelevant because the challenged document is treated as if it never existed. If the underlying challenge fails, the no-contest issue often becomes the next fight.

Burden of Proof

The party seeking forfeiture bears the burden of proving the action is a direct contest (or covered property/creditor claim), the clause expressly applies, and (for direct contests) the contest was filed without probable cause. Courts do not presume forfeiture.

7. What Happens If You Win — and If You Lose

No-contest clause litigation is about risk allocation. The outcome determines whether a beneficiary preserves their interest or forfeits it entirely.

If the Beneficiary Prevails

• The beneficiary retains their full trust interest
• The trustee loses the ability to use forfeiture threats as leverage
• The trust can be administered based on the result of the underlying litigation

Trustees frequently retreat from aggressive posturing once forfeiture is off the table.

If the Beneficiary Loses

If the court finds the action was covered by the statute, the clause expressly applies, and (for direct contests) the contest lacked probable cause, the penalty is forfeiture. That typically means loss of trust benefits covered by the clause and redistribution to other beneficiaries.

Forfeiture rulings are difficult to reverse — which is why analysis must occur before filing.

8. Real-World Case Patterns in No-Contest Litigation

Case Pattern 1: Trustee uses the no-contest clause as a threat

A beneficiary raises legitimate concerns about trustee conduct — missing assets, excessive fees, or delayed distributions. The trustee responds by threatening forfeiture if any petition is filed. Upon review, the proposed claims are enforcement actions, not direct contests.

Typical outcome pattern: the court finds no no-contest trigger, and the trustee’s leverage evaporates.

Case Pattern 2: Poorly framed petition creates unnecessary risk

A beneficiary intends to challenge trustee misconduct but includes allegations that sound like an attack on the trust’s validity. The trustee seizes on the language and seeks forfeiture.

Typical outcome pattern: sloppy pleading creates avoidable risk and increased cost. Careful framing would have avoided the issue.

Case Pattern 3: Direct contest filed without adequate investigation

A beneficiary files an undue influence claim based on suspicion and family dynamics, without medical records or corroborating evidence. The no-contest clause expressly applies.

Typical outcome pattern: the court finds no probable cause and forfeiture is enforced.

Case Pattern 4: Strong evidence, no forfeiture despite losing on the merits

A beneficiary files a direct contest supported by medical records and witness testimony, but ultimately loses at trial.

Typical outcome pattern: probable cause existed at filing, and the beneficiary retains the inheritance despite losing the case.

9. Common Trustee Threats — and Why They’re Often Empty

“Any lawsuit triggers the no-contest clause.”

False. Only statutorily defined direct contests (and expressly covered property/creditor claims) can trigger forfeiture. Enforcement actions generally do not.

“If you lose, you forfeit.”

False. Losing does not equal lack of probable cause. Courts reject hindsight-based forfeiture arguments.

“The clause covers everything.”

Rarely true. Clauses must expressly apply to the specific action. Ambiguity favors the beneficiary.

“You should ask permission before filing.”

There is no legal requirement to seek trustee approval before enforcing rights. This is a delay tactic.

“Our lawyer says you’ll lose everything.”

Trustee counsel represents the trustee — not the beneficiary. These statements are advocacy, not legal determinations.

10. Petitions for Instructions and Advance Determinations

Some beneficiaries want a court ruling on no-contest exposure before filing a high-risk petition. Modern California no-contest law is statute-driven and does not operate like the old “safe harbor” system many people remember.

That said, there are situations where a petition for instructions or declaratory relief can be used to clarify rights, define the scope of a trustee’s duties, or frame an enforcement route that avoids an unnecessary invalidity attack. The key is to structure the request as an enforcement or clarification matter — not as a disguised direct contest.

Used correctly, these petitions can reduce uncertainty and eliminate empty threats. Used incorrectly, they can create the very risk they were meant to avoid. This is a tool that requires careful drafting and disciplined statutory analysis.

11. Why No-Contest Clause Advice Is Often Wrong

No-contest clauses are one of the most misunderstood areas of trust litigation. Bad advice is common — even from experienced probate attorneys.

Common errors include reliance on pre-2010 case law, treating clauses as blanket forfeiture provisions, confusing losing with lack of probable cause, failing to distinguish enforcement actions from direct contests, and ignoring the requirement of express clause language.

Many attorneys give overly conservative advice out of fear, not law. Modern California no-contest law is statute-driven. If the analysis does not begin with the statute, it is probably wrong.

12. How ALDAV Analyzes No-Contest Risk Before Filing

Albertson & Davidson, LLP treats no-contest analysis as a threshold litigation issue — not an afterthought.

Before filing any petition that could implicate a no-contest clause, we analyze:

• The exact language of the clause
• Whether the proposed action qualifies as a direct contest (or covered property/creditor claim) under the statute
• Whether the clause expressly applies to that action
• The evidence available at filing to establish probable cause (for direct contests)
• Whether alternative enforcement routes exist that eliminate forfeiture risk

When risk exists, we mitigate it through careful pleading, strategic sequencing, and focused pre-filing investigation. Our objective is to preserve leverage while enforcing beneficiary rights.

13. Who Should Contact Us — and Who Should Not

You should contact us if:

• A trustee is threatening forfeiture to block legitimate claims
• You are considering a trust contest and fear losing your inheritance
• You want to challenge trustee conduct but are unsure about no-contest risk
• The trust contains a detailed or aggressive no-contest clause
• You need litigation-grade analysis before filing

You should not contact us if:

• You are only seeking estate planning or document drafting
• You want informal reassurance without legal analysis
• You are shopping solely on price
• You are unwilling to structure claims strategically

No-contest clause issues are not about fear — they are about precision. Proper analysis separates real risk from empty threats.

Contact: 858-209-2309; [email protected]