Personal Injury, Probate, Employment, & Complex Litigation


Steps to Challenging a Trust

If your loved one dies with a trust, at some point after their death you will find out about the existence of said trust. Hopefully it is because the trustee has done their job and notified you of the existence of the trust, but it is possible that you learn about the trust from third hand accounts.

After receiving a copy of the trust, you are going to want to pour over it and see what it says. Trusts are purposefully drafted by older attorneys to be opaque to a lay person, but generally speaking, if the trust is more recent it is likely that the trust will be mostly legible to anyone. The main terms you are likely concerned with are the gifts, and how they are given. The reason you need to review the trust is because you must make a determination about whether there is a term in the trust worth challenging the trust over.

If you have determined that there is a term(s) of the trust worth challenging the validity of the trust over, you then should see if the trust has a no-contest clause. If it does have a no-contest clause, then if you lose your trust challenge, you may be disinherited entirely. While I will go into this in greater detail later, if you have a substantial basis for believing the trust is invalid, you will likely not trigger the no-contest clause, even if you lose the contest—but please keep in mind that even if you challenge the trust with a good basis, it is still possible to be disinherited.

Whether there is a no-contest clause or not, you are going to want to take a very long and honest look at the merits of your claim of invalidity of the trust before you pursue a trust challenge. If you have a low probability of success, then it may be inadvisable to pursue a trust action that will net you tens of thousands of dollars in legal fees and nothing else.

Keep in mind that there are several ways to invalidate a trust, but the most common are through lack of capacity and undue influence (I will go over both of these later). If you do not have substantial evidence of either of these two claims, it may be inadvisable to pursue a trust challenge.

However, if you go through all of these steps and decide that the Trust contains language that is so unfavorable that it is worth challenging, that the potential cost of challenging the trust is worth the potential benefit, and that the claims you have to challenge the trust are strong, then the next step is to find an attorney.

An attorney will help you draft a petition under Probate Code section 17200 that challenges the validity of the trust. Once that challenge is filed and served, the proponent for the subject trust will file an answer that states why they believe the trust is valid.

From then on it is a waiting game. The civil legal process takes forever, and that is doubly true for any probate filing. Judges do not fast track any probate case. Most judges believe that probates should take a long time. And that makes sense from a certain point of view: once a probate case is decided it is very difficult to undo it and it may take a while to discover all of the heirs and all executed estate planning documents. But it does cause frustration.

While you wait, there will be discovery. In almost every trust contest you are going to need to depose the drafting attorney, subpoena medical and financial records and analyze said records on top of the normal discovery you need to send out.

At some point you will likely be ordered to mediation where you will attempt to informally resolve your dispute. If that does not resolve the dispute, then you will go back to court and the judge will assign you a trial date. In most cases it takes about two years to get to trial after filing your initial petition. During this entire two year process you will be paying an attorney a lot of money to do various necessary tasks, including but not limited to the tasks listed above. It is a very long and arduous process, but it can be done. Once the trial is concluded you will likely have to wait a couple of weeks before receiving the court’s verdict. However, during the trial you will likely be able to get a read on the judge and how they will rule. As such, it may be easier to come to a settlement after trial is concluded but before a decision is handed down than it is before trial.

Once the court reaches a decision that is generally the end of the line. If you won the contest then the estate will continue as if the challenged trust never existed. If you lose, the trust will be upheld, and if there is a no-contest clause then it is likely the trustee will file a petition with the court requesting a determination as to whether you are still to take your gift under the trust