Jim Bush, Partner at Keystone Law Group, discusses whether a decedent’s trust can be contested. Read the complete article below for more details. Click the YouTube “Subscribe” button to be notified when new videos are published.
Suppose a decedent’s trust leaves everything to her surviving spouse, whom she’d married just months before her death, instead of to her children. Her children find this suspicious, since she had always promised them that they would receive the lion’s share of her assets. Can a trust be contested in this scenario?
Or, perhaps a decedent drastically changed his trust after being diagnosed with dementia. Can a trust be contested in this scenario?
Contesting a trust in the above scenarios may be warranted. In the former scenario, it’s possible the surviving spouse unduly influenced the decedent to create a trust that benefits only him. In the latter scenario, it’s possible the decedent amended his trust when he did not have the mental capacity required to do so.
While the reasons to contest a trust are not limited to the above examples, they demonstrate common fact patterns in trust contests. That said, there are many more grounds for contesting a trust to be aware of.
In the following guide on contesting a trust, we will discuss everything you need to know to start the trust contest process. Remember that there is a strict statute of limitations to contest a trust, so if it is something you are considering doing, it is advisable that you consult with an experienced probate attorney soon.
What Does It Mean to Contest a Trust?
When you contest a trust, it means you are challenging the validity of a decedent’s trust instrument, or specific provisions within the instrument, in court.
What Happens When a Trust Is Contested?
When a trust is contested, the court evaluates evidence and arguments to determine whether or not a trust instrument is valid.
If the court determines a trust instrument is valid, the successor trustee can proceed with carrying out the provisions of the instrument. In other words, they can make distributions of trust assets to beneficiaries in accordance with the provisions of the trust.
If the court determines a trust instrument is invalid, it will invalidate the instrument, resulting in trust assets being distributed to trust beneficiaries according to a prior version of the decedent’s trust (if one existed and was valid) or to the decedent’s estate.
When trust assets are transferred to an estate, they’ll generally be distributed to estate beneficiaries according to the decedent’s will or to the decedent’s heirs according to intestate succession laws.
What Are the Rules for Contesting a Trust?
Can you contest a trust if you are not a beneficiary? Can an unhappy beneficiary challenge a trust? Can you contest a trust if the statute of limitations to contest a trust in California has elapsed? It is natural that you have questions. Contesting a trust can be complicated!
While consulting with a knowledgeable trust contest attorney early in the process is extremely important, learning the basics of contesting a trust is a good place to start. In the following sections, explore when a trust can be contested, who can contest a trust, the grounds for contesting a trust and more.
Can a Trust Be Contested After Death?
Yes, a trust can be contested after the death of the trust creator (called the settlor, grantor or trustor). In fact, after the death of a trust creator is when a trust is most often contested. This is because a trust generally cannot be contested when a settlor is alive and mentally competent.
If a settlor is alive and mentally competent, they typically have full control over the assets held by their trust, especially if their trust is a revocable living trust. A revocable living trust is a trust the settlor can amend or revoke during their lifetime, given they are mentally competent.
Can a Trust Be Contested Before Death?
Yes, a trust can be contested before death, but it’s typically only possible if the settlor is not mentally competent. For example, if a beneficiary learns a settlor drastically amended their trust after being diagnosed with advanced dementia, the beneficiary could contest the amendments before the settlor dies.
According to California Probate Code section 15800, when a settlor is alive and mentally competent, the trustee owes duties to the settlor. When a settlor is alive and mentally incompetent, the trustee owes duties to the trust beneficiaries. In other words, once a settlor loses mental competence, the trustee must proceed as though the settlor is deceased, notifying beneficiaries of the trustee’s incompetence, keeping them reasonably informed about trust administration and providing them with trust accountings, among other things.
Beneficiaries must keep in mind that their rights to a revocable trust when the settlor is incapacitated may be limited if they delay bringing a claim — namely, they could be barred from bringing the claim in the future. For this reason, they should consult with a skilled trust contest lawyer as soon as they learn the settlor may have created, amended or revoked their trust when they were incapacitated.
Who Can Contest a Trust?
It is important to recognize that only interested parties are entitled to contest a trust. Interested parties are individuals or entities with a financial stake in a trust. They generally include beneficiaries of a trust, the decedent’s heirs and creditors.
That said, not all interested parties are entitled to contest a trust. They must have something known as standing. Standing means that you have a financial stake in the outcome of the case. To put it another way, if the inheritance you’d receive by winning your trust contest exceeds the inheritance you are receiving under the current trust, you have standing.
It’s easy to understand why you need standing to contest a trust. The cost of contesting a trust can be significant, so it wouldn’t be worth doing if you’re not going to get anything out of it or if what you’d get out of it is not as substantial as what you stand to receive currently.
Can a Family Member Contest a Trust?
It depends. A family member of the settlor can contest a trust only if the trust being invalidated would result in their receiving a greater inheritance than the inheritance they are receiving under the current trust. Put simply, they would need standing to contest a trust.
To be an interested party, a family member generally needs to be a beneficiary under a decedent’s current trust, a beneficiary under a prior version of a decedent’s trust or a direct heir of the decedent. A direct heir is someone who would inherit by intestate succession if the decedent wer to die without a will.
Can a Beneficiary Contest a Trust?
It depends. A beneficiary can contest a trust only if the trust being invalidated would mean they receive a greater inheritance than the inheritance they are receiving currently under the trust. In other words, they would need standing to contest a trust.
Keep in mind that a beneficiary under a prior version of the decedent’s trust may also have standing to contest the trust.
Can a Non-Beneficiary Contest a Trust?
It depends. Unless a non-beneficiary is an interested party (i.e., a direct heir or a beneficiary under a prior valid trust who was disinherited) that has standing, they cannot contest the trust.
The reason for this is simple: they don’t have a financial interest in the trust and would gain nothing by contesting it.
Can an Heir Contest a Trust?
It depends. A direct heir whom the decedent excluded from their trust generally would have standing to contest the trust if the trust being invalidated would result in their receiving an inheritance via intestate succession.
On the other hand, a direct heir whom the decedent included in their trust as a beneficiary would have standing only if the trust being invalidated would result in their receiving a greater inheritance than the one they are receiving currently.
Remember that only direct heirs can contest a trust. Direct heirs often consist of the decedent’s surviving spouse and children. However, if a decedent died without a spouse and children, their direct heirs may be their grandchildren, parents, siblings or nieces and nephews.
What Are Valid Grounds for Contesting a Trust in California?
There are only a few acceptable grounds for contesting a trust. Outside of these established grounds, a trust generally cannot be contested.
Suppose you sacrificed your career and social life to act as your parent’s caretaker during the final few years of her life. Your siblings, on the other hand, never tended to or even interacted with your parent. This is why you were taken aback to learn after your parent died that she left you and your siblings equal shares of her trust.
As unfair as it may seem, you would not be entitled to a greater inheritance than your siblings because you dedicated more time and money to caring for your parent. Put simply, the court is not concerned with what you think you deserve as an inheritance; it is concerned with what the trust instrument says your inheritance is.
Therefore, the reasons to contest a trust are limited to foul play, capacity issues, execution issues and mistakes. If you are unsure whether your grounds for contesting a trust are valid, we recommend consulting with a qualified trust contest attorney.
Explore the grounds for contesting a trust in more detail in the sections that follow.
Undue Influence
Undue influence refers to manipulation or excessive persuasion or pressure being used on a settlor to cause them to create, amend or revoke their trust.
In general, for a person’s behavior to be regarded as undue influence, the influence must have been so forceful that the settlor overrode their own free will to make decisions about their trust that were not in their best interest.
Why Is It a Good Idea for Spouses to Try to Avoid Probate in California?
Fraud refers to intentional acts of deception that caused a settlor to create, amend or revoke their trust.
There are two types of fraud that can occur in the context of a trust. Fraud in the inducement refers to a settlor being tricked through false or misleading statements into signing a trust that is to their disadvantage. Fraud in the execution refers to a settlor being tricked into signing a trust without knowing its true nature or contents (i.e., they may not know the document they are creating is a trust).
Lack of Capacity
Lack of capacity refers to a settlor having created, amended or revoked a trust when they lacked the necessary mental competence to do so.
Because a trust is often more complex than a will, a higher degree of capacity (called contractual capacity) may be required to create, amend or revoke one.
Forgery
Forgery refers to a trust being signed, changed or copied by someone other than the settlor.
Seeking to have a trust invalidated on the ground of forgery can be difficult, as a handwriting analyst may need to be called as an expert witness to prove the signature appearing on the trust instrument isn’t the signature of the purported settlor of the trust.
Lack of Due Execution
Lack of due execution refers to a settlor not having followed established legal protocols when executing their trust.
Although a trust is not subject to the same requirements as a will (i.e., a trust does not require two disinterested persons to witness the signing of the instrument), it does need to be signed by the settlor. In addition, it should name beneficiaries and a successor trustee.
In California, a trust does not have to be notarized to be valid, but many settlors opt to have their trust notarized for added protection anyway.
Mistake
A mistake refers to a settlor being mistaken about a law or fact related to the execution of the trust instrument that causes the instrument to significantly deviate from their intentions.
The conditions that must be met to invalidate a trust due to a mistake are substantially
Revocation
Revocation refers to a settlor having previously revoked the trust instrument in question. Once a trust instrument is revoked, it cannot be used after the settlor’s incapacity or death to direct the disposition of their assets.
To revoke a trust, the trust at issue must be destroyed or amended, or a new trust must be created.
What Evidence Is Needed to Contest a Trust in California?
The evidence needed to contest a trust will depend on your grounds for contesting the trust. For example, if you are contesting a trust because you suspect it of being a forgery, you generally will need to demonstrate the signature on the trust instrument does not belong to the settlor by presenting as evidence documents the settlor had verifiably signed. Additionally, you may need to have a handwriting analyst compare the signatures and weigh in as an expert witness.
Most of the time, the burden of proof in trust contest cases rests with the contestant(s), since the court regards estate planning documents to be valid unless proven otherwise.
Evidence often includes the trust instrument itself, medical records, witness testimony, expert testimony, financial documents and electronic evidence (e.g., emails and texts). It is crucial you gather compelling evidence to prove why the trust instrument at issue is not a reflection of the settlor’s true final intentions.
Because of how important the evidence-gathering phase of litigation is to your case, it is recommended that you involve an experienced trust contest attorney in the process. An attorney specializing in trust litigation not only will understand the type of evidence to look for but also how to best present it to the court.
How Long Can a Trust Be Contested?
It’s crucial to remember that you do not have an unlimited amount of time to contest a trust in California. In fact, the period for contesting a trust is rather short to ensure trust administration isn’t delayed for an extended time.
If you plan to contest a decedent’s trust, it’s ideal to get the process started as soon as you are served notice by the trustee. If you’re unsure about contesting a trust, you should at least consult with a trust contest lawyer once you are served notice to determine whether you have a case worth pursuing.
What Is the Statute of Limitations to Contest a Trust in California?
According to Probate Code section 16061.8, the statute of limitations to contest the trust is 120 days from the date notice is served by the trustee or 60 days from the date a copy of the trust instrument is delivered during the 120-day period, whichever is later.
Keep in mind that if a trustee fails to notify you according to the procedure described in Probate Code section 16061.7, the timeline may be extended. That said, it is still best to actively pursue information from the trustee if they have failed to provide you with any to ensure your ability to contest the trust is not jeopardized.
How to Contest a Trust
If you are planning to contest a trust, there is a process you must follow. Although the steps you’ll be required to take can vary based on the circumstances of your case, the following sections provide a general overview of what the process of contesting a trust entails.
1. Secure a copy of the trust instrument.
Unless you have a copy of the trust instrument that you’ve reviewed, you will not have any way of knowing whether the trust is valid. For this reason, if the trustee hasn’t provided you with a copy of the trust instrument, you must immediately request a copy from them. If they don’t comply with your request, you may need to seek a lawyer’s help to hold the trustee accountable.
Once you have a copy of the trust instrument in your possession, it’s critical you thoroughly inspect it. Does it reflect what you knew to be the decedent’s final intentions? Do specific provisions stand out as suspicious? Does it contain errors? If the answer to any of these questions is yes, the trust instrument may be invalid.
It’s important to remember that, unlike wills, trusts are not lodged with the court. Hence, copies of trust instruments usually cannot be accessed by visiting the county clerk’s office.
2. Consult with a trust contest attorney.
Regardless of whether you plan to contest a trust, it is a good idea to get a second set of eyes on the trust instrument.
An experienced trust contest attorney may spot red flags within the instrument that had not been apparent to you and can advise you on whether or not it would be worth your time and money to contest the trust.
In addition, a trust contest attorney can fill you in on what your trust beneficiary rights entail so that you can take the necessary steps during trust administration to enforce them.
3. Ask other interested parties to join the trust contest.
If you decide to move forward with contesting a trust, you might consider asking other interested parties to join your contest.
Not only could asking other interested parties to join your contest offset your legal costs, but it could strengthen your case. For instance, if all the beneficiaries present as a united front against a beneficiary they believe unduly influenced the settlor to amend their trust, the beneficiary who has been accused of undue influence may be more likely to settle.
On the other hand, if you are an interested party who has been asked to join a trust contest, it is strongly recommended that you consider doing so. Interested parties who abstain from participating in another’s trust contest (we like to call them bystander or freeloader beneficiaries) could lose their seat at the negotiating table, resulting in a reduced or eliminated inheritance.
If you are unsure whether or not to join another party’s trust contest, your best bet is always to consult with a knowledgeable trust contest lawyer.
4. File a petition to invalidate the trust.
Once you understand the facts surrounding the trust and know who will be participating in your contest, it is time to make the trust contest official. You do this by filing a petition to invalidate the trust.
Your petition should summarize the facts that gave rise to your claim. For example, if you believe a beneficiary unduly influenced the settlor to provide them with a disproportionately greater inheritance than that of the other beneficiaries, you may wish to mention the authority the beneficiary had over the settlor, what made the settlor vulnerable to undue influence, the tactics the beneficiary used to influence the settlor and how the undue influence affected the trust.
At this stage of the process, you may not have much evidence to back up your claims. However, if you do have evidence, you may want to consider mentioning it in your petition, and possibly even attaching it.
Although there is nothing to stop you from drafting and filing the petition yourself, it would be ideal to hire a skilled trust contest attorney to complete this step on your behalf to ensure your petition has the best possible chance of success.
5. Gather the evidence needed to contest the trust.
During the discovery phase of litigation, you will search for evidence to back up the claims you made in your petition.
As mentioned previously, evidence may include, among other things, the trust instrument itself, medical records, witness testimony, expert testimony, financial documents and electronic evidence (e.g., emails and texts).
It’s not always easy to know what evidence you’ll need to prove your case, so involving a trust contest lawyer in the process is highly recommended. Also, far-ranging discovery often is required to build a compelling case. It can be difficult for an individual to take on this burden on their own.
6. Consider settling.
Although we have included settling as the penultimate step of the trust contest process, it theoretically can be resorted to any time after the petition to invalidate the trust has been filed, or even before, so long as all the parties involved in the trust dispute are amenable to the idea.
Settling usually involves the parties and their attorneys (if they have attorneys) attending mediation, which is a negotiation that takes place outside of court and is presided over by a neutral mediator.
If a resolution can be reached at mediation, the dispute could end more quickly, resulting in time and money savings.
7. Attend the trust contest proceeding.
If the parties were unable or unwilling to resolve the trust contest outside of court, the case will proceed to trial, where the court will determine whether or not the trust at issue is invalid.
Because trust contest proceedings generally necessitate that both parties present evidence and oral arguments, it is usually required that you attend the hearing with your trust contest attorney. Remember, even if a trial is ongoing, mediation is available to you.
If you win your trust contest, you may be able to seek an award of your attorney’s fees and costs, either from the trust or the opposing party, depending on the facts of your case. In addition, you may be able to seek damages if it’s determined the trust is invalid due to the opposing party’s misconduct.
FAQs About Contesting a Trust
Do you still have questions? If so, that’s completely understandable. Trust contests are not always easy to navigate, since no two trusts are alike.
Sometimes, it’s unclear whether a trust can be contested. For example, can a trust be contested if it is unsigned? Can a trust be contested if the trust is irrevocable? Can a trust be contested if it’s handwritten? Can a trust be contested if it has a no-contest clause?
If you are dealing with complications such as these, it would be advisable for you to seek the assistance of a trust contest attorney as soon as you receive a copy of the trust. Your attorney can inspect the instrument and discuss your concerns with you to help you determine whether it’s possible and in your best interest to move forward with contesting the trust.
If you need personalized guidance or are ready to move forward with contesting a trust with assistance from a skilled trust contest attorney, reach out to Keystone to request a consultation.
Can a trust be contested if it is unsigned?
In general, an unsigned trust is automatically considered invalid, so you will not have to do anything to have it deemed as such.
That said, there have been instances where an unsigned trust has served as proof of the settlor’s dispositive intent, or the settlor’s wishes surrounding how they want their assets to be distributed to beneficiaries after their death.
Can a living trust be contested?
Yes, a living trust can be contested. However, to contest a living trust, you generally must wait until the settlor loses capacity or dies, that is unless the trust is irrevocable.
A living trust is a trust that is active during the settlor’s lifetime, and generally becomes irrevocable (i.e., unable to be revoked or amended) after the settlor’s incapacitation or death. Living trusts are tools commonly used in estate planning.
Can a revocable trust be contested?
Yes, a revocable trust can be contested. However, you generally must wait until the settlor loses capacity or dies to contest a revocable trust. In other words, you must wait until the trust becomes irrevocable.
A revocable trust is a trust that can be revoked or amended by the settlor during their lifetime, so long as they retain capacity. The majority of trusts used in estate planning are revocable living trusts.
Can an irrevocable trust be contested?
Yes, an irrevocable trust can be contested on virtually all the same grounds as other types of trusts.
The grounds for contesting an irrevocable trust are: undue influence, fraud, lack of capacity, forgery, lack of due execution and mistake. The only ground on which an irrevocable trust cannot be contested is revocation, since, by definition, an irrevocable trust cannot be revoked by the settlor.
An irrevocable trust is a trust that cannot be revoked, terminated or amended by the settlor, at least not unilaterally. A nonjudicial settlement agreement, which requires unanimous consent from the beneficiaries, the trustee and settlor, can amend or terminate an irrevocable trust without a court order. However, if such an agreement cannot be reached, the parties will need to obtain a court order authorizing changes to the trust.
Can a testamentary trust be contested?
Yes, a testamentary trust can be contested on the same grounds as any trust can be contested. The only caveat is that you will need to contest the will that created the trust rather than the trust itself.
Let us explain. A testamentary trust is created by the terms of a decedent’s will and does not take effect until the will creator (called the testator) dies. This is why it’s necessary to file a will contest instead of a trust contest when contesting a testamentary trust.
Remember, when contesting a testamentary trust, you will be subject to the rules for contesting a will. For example, since wills are public, you could secure copies from the county clerk’s office. Also, because wills generally pass through the probate process, you could attend the initial probate proceeding to object to the admission of a will, which, if you’re successful, would have a similar effect to invalidating the document.
Are handwritten changes to a trust valid in California?
So long as the handwritten changes to a trust comply with the trust’s terms for a valid amendment of the trust, handwritten changes can be considered valid.
Usually, at a minimum, this requires that the changes be separately signed by the settlor and delivered to the trustee.
What does a no-contest clause in a trust mean?
A no-contest clause in a trust does not mean the trust cannot be contested; it simply means contesting the trust comes with risks. Namely, if a beneficiary contests a trust with a no-contest clause and loses, they may be required to forfeit their inheritance.
That said, no-contest clauses have become increasingly difficult to enforce, so they should not deter you from bringing a trust contest if your grounds for contesting the trust are valid.
Also, if you are an heir or beneficiary under a prior trust who currently does not stand to receive an inheritance, there are virtually no risks involved.
If you are considering contesting a trust with a no-contest clause, it is best to speak with a trust contest lawyer prior to bringing your case so they can evaluate the risks involved.
Is contesting a trust worth it?
This is something you will need to decide based on factors like the value of the assets at stake, your projected legal costs, budget and schedule.
It’s particularly important to consider the value of the assets at stake. For example, if the amount at stake is $100,000, contesting the trust may not be worth it since the legal fees alone may exceed that amount if the case were to go to trial.
If you’re having trouble deciding whether it is worth it to contest a trust, a trust contest attorney is always available to provide guidance.
How long does it take to contest a trust?
It is impossible to say how long it will take to contest a trust, since a variety of factors may be at play. For example, if the parties are willing to settle, the contest could be resolved any time after the initial petition is filed. Similarly, a contest being cut and dried (e.g., the decedent created their trust after their physician declared them to be incapacitated) also could result in it being quickly resolved.
In sum, it could take anywhere from a few months to a few years to contest a trust. How long it takes depends on the specific facets of your case.
Can a spouse override a trust?
No, a spouse cannot override a trust, but they can invoke their spousal rights after death if they believe a trust violates them.
For example, because a spouse’s community property rights entitle them to 50% percent of the community property (i.e., any property acquired over the course of a marriage by either spouse, with some exceptions), they could enforce their rights to community property if the trust disposes of more than their spouse’s 50% of the community property.
In the same vein, the spouse could enforce their interest in community property and contractual rights if a trust violates a prenuptial or postnuptial agreement they had with their spouse.
Can someone contest a trust because they are unhappy with their inheritance?
No, a trust cannot be contested solely on the basis of you being unhappy with your inheritance or believing you are deserving of more. A trust can only be contested on the established grounds for contesting a trust that we have discussed throughout this article.
If you are unhappy with your inheritance, you may consider asking a trust contest attorney to look over the trust instrument. They may spot red flags you did not catch, allowing you to contest the trust after all.
Have questions about contesting a trust? Call our experienced trust contest attorneys today.
If you are concerned that a decedent’s trust does not reflect their true final wishes, Keystone’s trust contest attorneys can help you file a petition to invalidate the trust.
We understand how challenging it can be to navigate a trust contest during a time of grief, but we are here to lighten your load and help you every step of the way.
Our compassionate legal team is standing by to answer your questions and address your concerns, providing you with the guidance you need to achieve your desired legal outcomes.
Discover what our team can do for you. Call our trust contest attorneys today to request a consultation.
