If you have a living trust, or are considering getting a living trust in California, you might wonder what may happen to your trust after you pass on. You’ll probably want to know if someone can come along and challenge the trust — possibly getting a judge to set it aside, or causing your survivors to settle for less than you intended them to have. A California estate planning attorney can talk to you about specific trust contest problems that the beneficiaries of your assets might face. 

A trust contest happens when an heir,  beneficiary or other interested person asks a court to change the terms of a trust, or to throw out a trust, to ensure that the contestant will receive more assets from a friend, relative, or loved one’s trust agreement. Often the challenger was previously a legal heir to a larger share of the assets, or a beneficiary who had a larger share of the assets under a prior trust,  but will receive a smaller portion under the most recent version of the document.

Here are some of the more common reasons that people challenge a trust:

Capacity

You must be at least 18 years old to sign a trust agreement, but there is no age that is automatically too old to create a trust. The law generally presumes that adults are of sound mind, but certain facts can cast a shadow of doubt on a person’s legal capacity to understand who their natural heirs are and the legal ramifications of signing a trust agreement.

For example, there might be questions about capacity if the person who creates or changes a trust:

• Has an official diagnosis of Alzheimer’s disease or another form of dementia. It is often best to have a medical authority certify that the person has legal capacity at the time that he or she signed the original or amended trust.
• Has a mental illness. A mental health practitioner may determine and certify whether the individual had legal capacity when he or she signed the papers.
• Is quite aged. For example, if your great-aunt is 104 years old, it may help her in some cases to have a medical expert evaluate and certify her capacity. 

It is often better to memorialize the mental state of the person to avoid problems down the road.  But you should consult with an experienced estate planning attorney before taking any action concerning an elder’s trust or other estate planning documents.

Undue Influence or Coercion

Unfortunately, some people use others for their own benefit. If someone exerts undue influence on a vulnerable person who makes a trust, and obtains a benefit from that undue influence, a judge can later set aside the trust on the grounds of undue influence because, but for the improper conduct, the person would not have signed a document with those terms.

Coercion (sometimes referred to as duress or menace) happens when someone threatens, bullies, or intimidates another person to cut a beneficiary out of a trust, reduce the person’s share, or give assets to an individual through the trust. Similar to undue influence, coercion involves depriving the person signing the document of his or her unfettered free will.

Fraud or Forgery

It is fraud when someone deceives another person into signing a trust instrument. The signer might be misled to believe, for example, that the document is something other than a trust, like an insurance form. Also, fraud can happen when someone tricks the signer into changing the terms of a trust based on false or misleading information, such as misleading the signer to believe that his sole heir, such as a child, is dead, or by falsely asserting that the child abused or abandoned the signer. 

Fraud can be a crime, such as when a document is forged. Forgery is when someone fabricates or alters a document, for example, typing up a trust agreement and forging someone else’s signature on the papers. If you can prove fraud, a judge can void the trust.

A California estate planning attorney can explain your options for protecting your estate from a frivolous trust challenge. You set up your trust and estate planning documents to provide for your loved ones. Contact us today for a consultation. You do not want someone to be able to countermand your wishes and take away the assets you planned to give to your beneficiaries.

A beneficiary is a person or legal entity designated to receive assets from a trust or estate—either after a person’s death or according to the terms of a trust. As a beneficiary, you have specific legal rights, and those rights are enforceable.

If you believe your rights have been violated, a California estate planning attorney can help you understand your options.

Who Notifies Me That I Am a Beneficiary of a Trust?

When a settlor (the person who created the trust) passes away, the trustee is legally required to notify all beneficiaries. Under California law, the trustee has 60 days from the settlor’s death to send this notification.

The notification must include:

• The settlor’s identity
• The trust’s formation date
• The trustee’s name, address, and telephone number
• The physical address where the trust is administered
• Any additional information the trust requires the trustee to disclose
• Notice that you are entitled to request a complete copy of the trust terms

Important deadline: If the trustee includes a copy of the trust with the notice, you generally have only 120 days from the date of notification to contest the trust. Don’t wait.

If the trustee refuses to provide a copy of the trust terms—or you believe the copy you received is incomplete or inaccurate—contact an attorney immediately.

What Happens if the Trustee Doesn’t Notify Me?

If you’re not notified, you still have options. When a will is filed with the probate court, it becomes a matter of public record—meaning you can obtain a copy directly from the court.

California law sets clear filing requirements:

Party	Obligation	Deadline
Custodian of the will	Deliver the will to the superior court in the county where the decedent resided	Within 30 days of death
Custodian (if not the executor)	Deliver a copy to the named executor or personal representative	Same 30-day window
Custodian (if executor’s location is unknown)	Provide a copy to a named beneficiary whose whereabouts are known	Same 30-day window

California Probate Code §8200 governs these requirements.

If a custodian refuses to file the will with the court, you have the right to file a petition demanding they produce it.

Key Deadlines to Keep in Mind

Timing matters significantly in trust and estate matters. Missing a deadline can limit your options.

Situation	Deadline
Trustee must notify beneficiaries after settlor’s death	60 days
Beneficiary’s window to contest the trust (if copy included with notice)	120 days from notification
Custodian must file will with probate court	30 days after death

Contact a California Estate-Planning Attorney for Help

Estate and trust matters can be complicated. Deadlines for filing contests and other petitions may be short. It is best to consult a California estate-planning attorney as soon as possible if you believe you are being denied information or property that your are entitled to receive as a beneficiary of a trust or estate. Talk with our California estate planning attorneys today.

As a beneficiary of a trust agreement, you have certain rights by law. The trust agreement may also give you rights as a beneficiary. Because you may receive significant benefits from the trust, it makes sense to know and understand your rights as a beneficiary. A California beneficiary rights attorney can help you protect your rights as a trust beneficiary, including contacting the trustee on your behalf to resolve issues directly or by filing a lawsuit with the court seeking resolution of a matter related to the trust or its administration.

1.  You have the right to receive notice of the trust and the property held by the trust.

As a beneficiary, you have the right to review a copy of the trust once the vestment of your rights under the trust occurs. Your rights in a trust become vested with the trust becomes irrevocable. A trust can be created as an irrevocable trust while other trusts become irrevocable upon the death of the grantor or another qualifying event. When you receive a copy of the trust, read the entire trust. If you do not understand any of the terms of the trust, contact an attorney for assistance. You need to understand the provisions of the trust to know whether your rights are being violated.

2.  You have the right to receive an annual accounting from the trustee.

Each year, the trustee must provide the trust beneficiaries with an accounting pursuant to trust laws in California. The terms of the trust agreement cannot waive or restrict the duty of the trustee to provide annual accounting. Beneficiaries are also entitled to an accounting from the trustee upon termination of the trust or when a new trustee assumes management of the trust.

3.  The accounting must contain certain details regarding trust property.

The annual accounting by the trustee must satisfy the legal requirements for a trust accounting record. For example, the trustee must include information related to expenses incurred by the trust during the year. The trustee must also account for any trust property sold, transferred, or distributed during the year. The beneficiaries also have the right to know what property the trust still holds.

4.  You have the right to petition the court for assistance.

If a trustee fails to perform his or her duties or breaches the fiduciary duty owed to beneficiaries of the trust, you have the right to petition the court to ask the court to intervene. The court may require the trustee to account for various actions and property. Depending on the outcome of the case, the court may remove the trustee and order the trustee to reimburse the trust for value lost because of the trustee’s breach of duty or other wrongdoing.

Contact a California Estate-Planning Attorney for More Information

The terms of the trust agreement impact your rights as a beneficiary. Trust agreements are complicated documents. A California estate-planning attorney can review the trust to determine your rights as a beneficiary under the trust agreement and pursuant to California trust law. If your beneficiary rights have been violated, the attorney can explain the various legal options available, including trust litigation, to resolve the matter. Contact us today for a consultation.

After your death, the person you name in your will to manage your estate begins the process of probating your will. Your will is authenticated, and your personal representative begins securing your property, identifying your heirs, and assessing your final debts and legal obligations. Your will dictates the distribution of your property after payment of your final debts.

However, your heirs or other interested persons could contest the terms of your will. If your will is overturned, your wishes may not be carried out. Consulting a California estate-planning attorney when drafting your will is one of the best ways to avoid a will contest.

Steps You Can Take to Avoid a Will Contest

You cannot stop someone from contesting the terms of your will after your death. However, you can make it more difficult for someone to have grounds to contest the will and make it less likely that a will contest succeeds. Steps you can take to protect your will from a contest after your death include:

• Include a no contest clause in your estate. A no contest clause states that if someone contests your will, then that person cannot inherit from your estate. However, no contest clauses can only be enforced in California under very specific, limited circumstances. In many cases, if the court finds that the person had probable cause to contest the will, the person is not disinherited if that person loses his or her battle to contest the will.
• Properly execute your will. Improper execution of a will could give someone grounds to contest your will. Even though California recognizes wills that are handwritten and signed without witnesses, it is best to have at least two witnesses sign your will at the same time you execute the will who are not beneficiaries of your estate.
• Include a self-proving clause in your will. A self-proving clause is a statement by the witnesses that you (the testator) had the capacity and intent to create the will and there appears to be no undue influence being exercised to force the person to sign the will. A notary public’s signature is also required stating that the information in the affidavit has been sworn to and acknowledged by the witnesses and the testator.
• Obtain proof of mental capacity. If you believe that one of your heirs may attempt to contest your will alleging you lacked the mental capacity to execute a will, you might want to obtain at least two written statements from physicians who have examined you and determined you have the mental capacity to execute legal documents. While this will not prevent someone from contesting your will, it could make it much more difficult for the person to succeed in their endeavor.
• Discuss your wishes and desires with your family. One of the reasons that family members contest a will is that they believe the terms of the will are not what you intended as your final wishes. Discussing your will with your heirs in a candid fashion may be difficult, but it can reduce the chance of a will contest because an heir believes he or she was to receive an inheritance even though you never made any explicit or implied statements that supported the person’s assumption.

Contact a California Estate-Planning Attorney for Help

Again, one of the best ways to ensure that your wishes are carried out after your death is to create a valid will. A California estate-planning attorney can help you avoid mistakes or errors that could give rise to a contest of your will. Your attorney can also help you take additional steps to protect your will and your estate, such as including trust agreements in your estate plan, if you believe that an heir may contest your will after your death. Contact us today for a consultation.

Estate Planning Attorneys Serving San Mateo County, Belmont, Burlingame, Redwood City, Foster City, and Hillsborough.