Trust litigation is time-sensitive. Act now to safeguard your rights.
Trust litigation refers to all trust-related actions brought to the court. While every case is unique, we see certain issues arise time and again in our trust litigation practice.
For example, suppose a family member manipulated a vulnerable loved one into changing their trust. Beneficiaries who were unfairly disinherited might pursue litigation to challenge the amendment, while a trustee might need to defend the trust against legal action to ensure it reflects the decedent’s true intentions.
In another situation, suppose a trust faces substantial financial liabilities that the trustee is responsible for paying, but the trust lacks sufficient funds to cover the debts. To address this, the trustee proposes selling a trust property below fair market value because it isn’t attracting higher offers. If beneficiaries oppose the proposed sale, the trustee must seek court approval to proceed. In this scenario, beneficiaries may litigate to block the sale, while the trustee may litigate to secure the court’s authorization to complete it.
In short, there are numerous situations where trust litigation is not just an option — it may be the only way to protect interests. This isn’t inherently negative. For beneficiaries, trust litigation provides a means to safeguard and fight for their rightful inheritance. For trustees, it offers a way to defend against liability, protect trust assets, and ensure the trust creator’s intentions are properly carried out.
“To many, the term ‘trust litigation’ sounds daunting — and, in some respects, it can be,” says Shawn Kerendian, managing partner at Keystone Law. “While trusts can be complex legal documents, most issues can be seamlessly navigated with the right attorney helping you. Our firm has assisted countless trustees and beneficiaries favorably resolve trust disputes in and out of court.”
Examples of Trust Litigation Cases
To give you a clearer picture of the kinds of disputes trust litigation can address, we’ve outlined some of the most common case types below.
Keep in mind that this list is not exhaustive. Even if your situation doesn’t appear here, trust litigation may still be an option. If you’re uncertain whether your matter qualifies, consulting an experienced trust litigation law firm can help you determine the best path forward.
Legal Matter | Beneficiaries | Trustee |
Trust Contests | Beneficiaries may challenge a trust’s validity, alleging issues like undue influence, fraud or lack of capacity in order to protect or reclaim their inheritance. | Trustees may defend the validity of the trust or prevent actions that would interfere with proper trust administration. |
Trust Ambiguities | Beneficiaries may seek to resolve ambiguities in a trust by petitioning the court for instructions on how unclear terms should be interpreted, ensuring that distributions are made according to the settlor’s intent. | Trustees may seek guidance from the court on how to interpret ambiguous provisions, protecting themselves from liability by confirming the proper way to administer the trust and distribute assets. |
Trust Property Disputes | Beneficiaries may ask the court to determine legal entitlement when there’s a disagreement over ownership of specific assets, ensuring they receive what’s rightfully theirs. | Trustees may seek the transfer of assets that rightfully belong to the trust — whether from the decedent’s estate, third parties or in cases where the trust’s ownership is disputed — and to defend the trust’s right to its property, ensuring proper administration and protection of trust assets. |
Trust Accounting Disputes | Beneficiaries may challenge or compel trust accountings, request clarification or corrections, or seek court review to ensure all trust assets are properly accounted for, as well as managed and distributed according to the trust’s terms. | Trustees may defend their financial reporting, challenge beneficiary claims of misconduct or mismanagement, or seek court approval for complex transactions, ensuring trust accountings accurately reflect the trust’s assets and activities. |
Removal and Surcharge | Beneficiaries may petition the court to remove a trustee whose actions are harming the trust. They may also seek a surcharge to reimburse the trust for losses caused by the trustee’s mismanagement or misconduct. | Trustees may defend against removal or surcharge claims or clarify ambiguities about their responsibilities to reduce liability. |
Claims by Spouses, Children, and Unmarried Partners | Immediate family members unintentionally excluded from a trust may file a claim to inherit as an omitted spouse or child. Unmarried long-term partners may file a claim to enforce any written or verbal agreements surrounding assets made between the deceased partner and them. | Trustees may defend the trust against claims by omitted spouses, children, or unmarried partners, protecting the trust and its assets from unauthorized claims. |
Trust Contests
A trust may be contested by beneficiaries or heirs if they believe it fails to reflect the true final wishes of the settlor.
Perhaps a trust leaves the bulk of the settlor’s assets, including the family home, to a new spouse they married shortly before death. The children, who always maintained a close relationship with the parent, are surprised and unsettled by this outcome, believing it does not reflect the parent’s longstanding intentions.
In this case, beneficiaries may contest the trust’s validity, while the trustee may need to defend the trust or turn to the court for guidance on how to administer the trust amid the dispute. Beneficiaries must remember that contesting a trust requires both legal standing (a financial interest in the outcome of the contest) and valid legal grounds.
Common legal grounds for contesting a trust include:
- Undue influence: The decedent was pressured or manipulated into creating, changing, or revoking their trust.
- Fraud: The decedent was tricked into creating, altering, or revoking their trust.
- Lack of capacity: The decedent lacked the mental ability required to create, alter, or revoke their trust.
- Forgery: The trust document, or the decedent’s signature, was falsified.
- Mistake: The decedent misunderstood what they were signing or its consequences.
- Revocation: The decedent had already revoked the trust before their incapacity/death.
Ambiguities in Trusts
When the terms of a trust are open to more than one reasonable interpretation, it may be necessary to ask the court to intervene to resolve the ambiguity.
Suppose a trust provision that states: “My home should pass to my children.” At first glance, the instructions seem clear. But if the decedent owned two primary residences — one on each coast — it becomes unclear whether the children should inherit one of the homes, both or a specific property.
Situations like these almost always leave at least one party feeling disadvantaged by whichever interpretation prevails. Fortunately, trust litigation often can be used to fairly resolve the trust ambiguities.
Ambiguities in a trust usually require a Petition for Instructions to be filed with the court. When interpreting ambiguous terms, the court will typically review the trust as a whole and may consider extrinsic evidence, such as conversations or letters that shed light on the settlor’s intent. In some cases, the parties may agree to a negotiated settlement, splitting or reallocating the disputed assets without needing a court ruling.
Trust Property Disputes
If a person or entity is holding trust property or has damaged it, trust litigation can be used to recover the property, damages, or both. In many cases, this can be accomplished without full-scale litigation through a petition known as an 850 Petition. In other situations, however, full litigation may be necessary.
For a trust to be considered “funded,” the settlor must transfer assets into the trustee’s name during their lifetime. If this step is overlooked or not completed before death, those assets are not legally part of the trust and may instead be considered part of the settlor’s probate estate.
Suppose a trust instructs for a particular property to be sold and the proceeds divided among the settlor’s children. But before transferring the deed into the trustee’s name, the settlor dies unexpectedly. As a result, the property is claimed by the decedent’s probate estate.
In this situation, the trustee or beneficiaries can point to the trust’s terms as evidence of the settlor’s intent and file an 850 Petition to recover the property for the trust. If granted, the court will order the property transferred into the trust to be distributed to beneficiaries according to the trust’s terms. If denied, the property must pass through the probate process to determine whether it belongs to the estate or the trust.
Of course, this is just one type of trust property dispute. These disputes can arise in many forms, but the key takeaway is that resolving them doesn’t always require drawn-out litigation — though the process may still begin with the same kinds of filings.
Trust Accounting Disputes
In California, trustees are generally required to provide beneficiaries with a formal trust accounting at least once a year for as long as a trust remains active. Trust beneficiaries may choose to waive this requirement in writing, but they still retain the right to request information about the trust — including its finances — at any time.
If a trustee refuses to give accounting, delivers one that is incomplete or inaccurate, or withholds important information, beneficiaries have legal recourse. They can petition the court to compel an accounting, or if an accounting was provided but appears suspicious, they can litigate to challenge it. A trustee, on the other hand, may defend their financial reporting, challenge beneficiaries’ claims, or seek court approval before making complex transactions using trust assets.
Trustee Removal and Surcharge
When there is a suspicion of serious trustee misconduct — such as a misappropriation of trust funds by the trustee, reckless investments, or a flagrant disregard of the trust’s terms — the beneficiaries may resort to trust litigation to hold the trustee accountable.
Through litigation, beneficiaries may seek the trustee’s removal and even a surcharge (a court order requiring the trustee to repay the financial losses they caused the trust). Trustees, on the other hand, may defend their actions to prevent such consequences or litigate to obtain clarity about the rights and limitations of their role.
Claims by Spouses, Children and Unmarried Partners
In certain situations, a decedent’s surviving spouse, children, or even a long-term partner may be entitled to an inheritance — even if they are not named in the trust.
If a spouse has unintentionally been left out of a trust, they are usually entitled to the same share they would have received under intestate succession laws if the decedent died without a will — typically all the community property and a portion of the decedent’s separate property. To secure it, they may need to litigate by filing an “omitted spouse” claim with the court.
Children may have inheritance rights if they were unintentionally omitted as well. For example, if a child was born or discovered after the trust was created and the settlor never updated the trust to include them, that child may qualify as an “omitted child.” If so, they are generally entitled to the same share they would have inherited had the decedent died intestate.
That said, if a child was intentionally disinherited (for example, because the parent provided for them through other means), they usually cannot claim a portion of the trust. Finally, a decedent’s unmarried partner may sometimes have a right to inherit — particularly if they were in a long-term cohabitating relationship, and there was a written or oral agreement about shared property or support. In these cases, the surviving partner may pursue a type of creditor’s claim known as a Marvin claim, rather than traditional trust litigation, to assert their inheritance rights.
For their part, trustees can defend the trust from baseless claims made by omitted spouses and children, as well as unmarried cohabitating partners of the decedent.
The 6 Stages of California Trust Litigation
Trust litigation typically unfolds in seven stages, though not every stage will be necessary in every case. The specific path — and how long it takes — largely depends on whether the dispute settles early or proceeds to trial, as well as the level of preparation required by your legal team to build the strongest possible case.
It’s also worth noting that while mediation appears as Stage 4 in the list below, it can be pursued at almost any point after the initial pleadings are filed. In fact, mediation remains an option even after a trial is already underway.
1. Initial Research
Although extensive fact-finding typically occurs later during discovery, this first stage is about laying the foundation for your case. Your attorney will meet with you to discuss the dispute in detail and review key documents — such as the trust instrument and any relevant correspondence — to better understand the allegations at hand.
If the initial review reveals that your claims lack merit, your lawyer will advise you upfront. But if the claims appear viable, they’ll move forward with the next step in the process.
At this time, your attorney will also identify critical filing deadlines based on the type of trust litigation involved. For example, a trust contest usually must be filed within 120 days of receiving notice, while fiduciary misconduct claims often carry a three- to four-year statute of limitations from when the alleged misconduct occurred.
2. Pleadings
The formal legal process begins with the filing of a petition in probate court. Because trust litigation is complex, it’s generally best to have an attorney prepare and file this petition on your behalf.
The petition must clearly outline your claims and the remedies you’re seeking — such as suspending or removing a trustee, recovering misappropriated assets, or invalidating the trust.
Once filed, the petition must be formally served on all interested parties, giving them the opportunity to submit a response or objection.
3. Discovery
During the discovery phase of trust litigation, both sides exchange evidence to support their claims and defenses. This process often involves written requests — such as interrogatories, requests for documents, or requests for admissions — and subpoenas directed to third parties.
Attorneys may also conduct depositions, where witnesses and parties are questioned under oath, and their testimony is recorded for potential use at trial. Because discovery can be extensive, it may involve multiple rounds and take considerable time to complete.
It’s also common for disputes to arise over compliance with evidentiary requests, which can further prolong the process.
4. Mediation
Before proceeding to trial, the court may require mediation — i.e., a structured negotiation held outside of court with a neutral mediator.
Mediation provides an opportunity for the parties to present their positions and work toward a mutually acceptable resolution without the need for a trial.
If the parties reach an agreement, the case can be resolved through mediation. If not, trust litigation proceeds to the next stage.
It’s worth noting that the majority of cases resolve prior to litigation, settling at or immediately after mediation.
5. Trial Preparations
Once it becomes clear that your case is unlikely to settle, your legal team will begin preparing for trial. This preparation may include organizing and strategizing the presentation of evidence, preparing witnesses for testimony, filing evidentiary motions to admit or exclude evidence, and drafting compelling opening and closing statements.
At this stage, your attorneys work to anticipate every potential hurdle that could arise during trial, ensuring your case is presented as effectively as possible.
6. Trial
At trial, trust litigation reaches its climax. Attorneys will present opening statements, call and cross-examine witnesses, introduce evidence, and deliver closing arguments. The court will then issue a ruling — typically within 90 days.
Trials can span anywhere from a single day to several weeks; it depends on the complexity of the case.
If the outcome is unfavorable, the adversely affected party may have the ability to appeal to a higher court, but keep in mind that probate appeals are subject to strict deadlines and can only be filed under certain conditions.
Trust Litigation Attorney Fees — What Factors Influence Cost?
The final cost of trust litigation is difficult to predict because of the numerous variables that can influence the price tag.
While litigation of any kind is rarely inexpensive, certain factors — which are discussed below — can substantially increase or decrease the overall cost.
Complexity of Case
It goes without saying that the more complex a trust litigation case is, the higher the potential cost. But what factors contribute to that complexity?
Factors that can increase the cost of trust litigation include:
- The need for expert witnesses – e.g., handwriting experts or forensic accountants who may be required to support your claims
- Extensive discovery – e.g., large volumes of documents, records, and depositions could add significant time and expense.
- Types of assets involved – e.g., real property and other non-liquid assets may add more complexity than cash or simple financial accounts
- Nature of the claims – e.g., a claim to recover trust assets may be relatively simple, while a petition to recover assets and remove or surcharge a trustee is typically more complicated and costly
Value of Assets at Stake
When high-value assets — or a significant portion of a trust’s assets — are at stake, they naturally increase the complexity of a trust litigation case and, in turn, its potential cost. The greater the value of the assets involved, the more resources, time, and expertise may be required to properly investigate and litigate the claims.
Additionally, when valuable or unique assets are involved, there often is more motivation to contest or defend the trust vigorously. This can lead to longer negotiations, more extensive discovery, and the involvement of expert witnesses — all of which can further drive up costs.
Attorney’s Fee Structure
Attorneys typically propose fee structures after evaluating the specifics of your trust litigation case.
The most common arrangement is an upfront retainer combined with hourly billing for the attorney’s time. While extended trust litigation can make hourly fees add up, the advantage is that you retain the full amount of any settlement or trial award. Additionally, this structure allows your attorney to dedicate the necessary time to your case without being constrained by a flat-fee cap, helping ensure thorough preparation and representation.
For less complex matters, some attorneys may offer a hybrid structure, such as a flat fee for drafting the initial petition and hourly billing once trial preparations begin.
Flat fees and contingency arrangements are generally rare in trust litigation, particularly for complex cases. The unpredictable nature of these disputes makes it difficult for attorneys to assume the financial risk such arrangements require.
How Quickly the Case Resolves
A trust litigation case that settles early in the process is typically far less expensive than one that settles late or goes to trial. The reason is straightforward: Cases resolved early require fewer resources, less time, and less preparation from your trust litigation law firm.
For example, if your case reaches a settlement shortly after the initial petition is filed, stages like discovery, depositions, evidentiary hearings, and trial preparation may never be necessary. As a result, your overall costs could be substantially lower than for a case that proceeds all the way to trial.
It’s also important to remember that mediation can be pursued at any point after the initial pleadings, offering opportunities to resolve disputes without incurring the higher costs of prolonged litigation.
Advice From a California Trust Litigation Attorney
Our experienced trust litigation attorneys have compiled practical tips to help you navigate the various stages of trust litigation effectively. Following these tips can ensure your claims receive proper consideration and improve your chances of achieving a favorable resolution.
Obtain a Copy of the Trust Early
One of the first steps as a trust beneficiary or heir is to obtain a copy of the trust. Doing so allows you to understand the specifics of your inheritance, including what you are entitled to, when distributions are scheduled, and any conditions attached.
Often, the trustee will provide a copy along with the notice of trust administration. If they don’t, it’s crucial to request one immediately. Without access to the trust, enforcing your rights and protecting your inheritance becomes much more difficult.
Keep in mind that trusts are private documents. They are not filed with the court and are only accessible to interested parties.
Maintain Harmonious Relations
It’s natural to feel frustrated if a trustee is uncooperative or a beneficiary resists trust-related decisions. However, maintaining harmonious relations is essential. Beneficiaries should communicate preferences clearly, such as whether they prefer a physical asset over proceeds from its sale. Trustees, in turn, should provide timely updates about significant decisions affecting the trust.
Fostering transparency and open communication can often prevent disputes from escalating into formal trust litigation. Trustees must remember their fiduciary duties, while beneficiaries should aim to collaborate constructively.
Keep Meticulous Records
Regardless of whether you plan to pursue trust litigation, keeping thorough records is critical. Maintain a file of all trust documents and track their relevance. Additionally, keep a log of correspondence with the trustee and any requests you make.
“Detailed records provide evidence to support any future claims,” explained Roee Kaufman, a partner at Keystone. “While discovery allows parties to gather evidence later, having documentation from the start strengthens your position and demonstrates why your claim is justified.”
Don’t Delay Legal Action
Trust litigation is often time-sensitive, making it crucial to act promptly if you suspect you have a valid claim. Statutes of limitations vary depending on the claim, so filing sooner rather than later helps protect your rights.
Early action also preserves evidence. For example, if you plan to pursue a fiduciary misconduct claim, waiting too long could allow a trustee to conceal or inadvertently lose critical evidence.
If you’re unsure whether you have a claim, consult a trust litigation law firm promptly to assess your options and determine the strength of your case.
Consult a Trust Litigation Lawyer
Whether you’re a beneficiary or trustee, having a trust litigation attorney is invaluable during trust administration. Beneficiaries should not assume that the trustee’s attorney represents them — they must retain their own legal counsel to protect their interests.
A trust litigation lawyer can monitor the administration process, ensure fiduciary duties are upheld, and enforce your rights as necessary. Having an attorney on your side ensures issues are addressed promptly, preventing small disputes from escalating into major litigation.
Be Willing to Settle
Settlement often requires compromise, but it can be preferable to a trial, particularly when cost, time and family relationships are considerations. Settling trust litigation out of court saves resources, reduces stress and may help preserve family ties.
Settlement also provides flexibility, as parties to a dispute can generally agree to settle on whatever terms they deem appropriate, while trial can be an “all or nothing” proposition.
That said, if you are committed to a particular outcome or wish to recover legal fees — often only possible through trial and a favorable resolution — pursuing trust litigation in court may still be the best option.
California Trust Litigation FAQs
Still confused about trust litigation? Consult the frequently asked questions below for additional guidance.
For specific inquiries — or to discuss a particular trust litigation matter — we recommend reaching out to our firm directly. Our legal team is standing by to assist.
Is a trustee required to participate in trust litigation?
Determining whether to participate in trust litigation as a trustee can be complex, so it’s essential to consult with a trust litigation attorney regarding your specific situation.
That said, if the trust explicitly directs the trustee to take action in a dispute, the trustee may have a legal obligation to do so. Conversely, if the trust provides no such instructions, it may not be in the trustee’s best interest to intervene — unless the trust’s assets are at risk.
For instance, if beneficiaries are merely disputing their individual shares, the trustee may be wise to abstain from participation. On the other hand, if a beneficiary is attempting to invalidate the trust entirely, the trustee’s involvement could be critical in protecting the trust and its assets.
What happens with a trust after death?
How a trust works after death is different from how a will works after death. Unlike a will, a trust is private and generally does not pass through probate.
Most trusts become irrevocable upon the settlor's incapacity or death, meaning the document can no longer be changed or revoked.
So long as the trust holds sufficient assets to cover administrative expenses, claims and other financial obligations, the trustee can make preliminary distributions to beneficiaries. Because trusts are private, these distributions can often occur without court approval.
In general, a trust will close once all its assets have been distributed.
Can a trustee be a beneficiary?
Yes, a trustee can also be a beneficiary, but this situation creates a potential conflict of interest. The trustee must take special care to ensure this conflict does not interfere with their duty to administer the trust fairly and properly.
For example, if a trustee who is also a beneficiary provides themselves a loan from the trust, fails to repay it and does not disclose it in their accounting, other beneficiaries may perceive this as a conflict of interest. They could then seek the trustee’s removal to prevent further misconduct.
If a trustee is concerned about a potential conflict of interest, they have the right to decline their appointment or resign if they’ve already assumed the role.
Can a trustee withdraw money from a trust?
Yes, a trustee can withdraw money from a trust, but only for the benefit of the beneficiaries — not for personal gain.
Trustees are authorized to withdraw funds to pay third-party professionals, cover trustee fees, preserve trust property and distribute to beneficiaries. They may not withdraw money for personal expenses, even if temporarily.
Trustees must carefully document any withdrawals, including the purpose and timing, in case the transactions are later challenged. They must also follow the trust’s specific instructions — for instance, if the trust directs the first distribution to occur a year after their appointment, the trustee cannot take it earlier.
Can trust distributions occur amid trust litigation?
Whether distributions can occur during trust litigation depends on the scope of the dispute. If litigation concerns only certain assets, the trustee can generally distribute the unaffected assets.
That said, if most or all of the trust is under dispute, the trustee should hold off on distributions to avoid inadvertently distributing assets that are subject to litigation.
Still have trust litigation questions?
Whether you already have a trust litigation case or simply want to determine if you have a valid claim, our California trust litigation attorneys are ready to assist.
Our team handles trust disputes daily and is well-versed in navigating complex trust litigation. We are committed to helping clients achieve the most effective resolution for their unique legal situation.
Call our firm today to learn how we can help protect your interests.
