Laguna Beach Trust and Probate Litigation Attorneys
When a loved one's trust or estate turns into a disagreement, our practice helps beneficiaries, trustees, heirs and executors throughout California, including remotely, understand their rights and work toward a resolution.
Who we help.
Disputes over a trust or an estate usually arise at a hard time, often soon after a death in the family, and among people who know each other well. We represent people on every side of these matters:
Beneficiaries
If you're named in a trust or will and you're concerned about how it is being handled, or you haven't been told what's going on, we can help you get information, review accountings and decide what to do next.
Trustees
If you're serving as a trustee and a beneficiary has objected, threatened to sue or filed a petition, we can help you respond, ask the court for instructions and keep carrying out your duties.
Heirs
If you believe a trust, will or amendment doesn't reflect what your loved one actually wanted, we can review the documents and the circumstances with you and explain the deadlines that may apply.
Executors and administrators
If you're the personal representative of a probate estate and someone has contested the will, your appointment or your handling of the estate, we can represent you in court. For the probate process itself, see our probate practice.
We can't represent people on opposite sides of the same dispute, so we'll run a conflict check before we discuss the details of your matter.
Common trust and probate disputes.
Trust contests
A trust contest challenges whether a trust, or an amendment to it, is valid, for example because of lack of capacity, undue influence, fraud, forgery or improper signing. Timing matters. After a revocable trust becomes irrevocable because the settlor died, the trustee must serve a notification on the beneficiaries and heirs (Prob. Code §16061.7). A person served with that notification generally can't bring an action to contest the trust more than 120 days after it was served, or 60 days after a copy of the trust terms was delivered to them during that 120-day period, whichever is later (Prob. Code §16061.8). If you've received a trustee's notification, don't wait to have it reviewed.
Will contests
A will can be challenged before it is admitted to probate, by filing an objection in the probate case (Prob. Code §§8004, 8250). After a will has been admitted, an interested person generally has 120 days to petition the court to revoke the probate of the will, with limited exceptions (Prob. Code §8270).
Undue influence and lack of capacity
California defines undue influence as "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity" (Prob. Code §86; Welf. & Inst. Code §15610.70). The court considers the person's vulnerability, the influencer's apparent authority, the tactics used and the fairness of the result, and an unfair result alone isn't enough. In some cases the law presumes a gift was the product of fraud or undue influence, for example a gift to the person who drafted the document or, in some circumstances, to a care custodian of a dependent adult (Prob. Code §21380).
Capacity challenges ask whether the person understood what they were signing. The standard for a will is in Prob. Code §6100.5. For trusts and other decisions, courts look to Prob. Code §§810–812, and a simple trust amendment that closely resembles a will may be measured by the will standard (Andersen v. Hunt (2011) 196 Cal.App.4th 722). These claims depend heavily on medical records, witnesses and the timeline, so we gather that evidence early.
Breach of fiduciary duty and trustee removal
A trustee must administer the trust solely in the interest of the beneficiaries (Prob. Code §16002). When a trustee self-deals, mismanages assets, plays favorites or simply won't act, a beneficiary or cotrustee may ask the court to compel performance, stop the breach, order the trustee to make it right, reduce compensation, appoint a temporary trustee or remove the trustee (Prob. Code §16420). Grounds for removal include breach of trust, unfitness, a failure or refusal to act, and excessive compensation (Prob. Code §15642). Claims for breach of trust have their own three-year limitation rules, measured from when an adequate written account or report was received or, if there wasn't one, from when the claim was or should have been discovered (Prob. Code §16460).
Petitions for instructions and accountings
Not every disagreement is a lawsuit against someone. A trustee or beneficiary may petition the court on many questions about a trust's "internal affairs," including what the trust means, instructing the trustee, settling the trustee's accounts, and compelling the trustee to provide the trust's terms, information or an account when a written request has gone unanswered for 60 days (Prob. Code §17200). Trustees must report information on a beneficiary's reasonable request, and generally must account at least annually to current beneficiaries (Prob. Code §§16061, 16062). For a trustee, a petition for instructions can be a way to get the court's direction before acting on a disputed question. (For trust administration without a dispute, see our trust administration practice.)
Financial elder abuse
Under California law an "elder" is anyone residing in the state who is 65 or older (Welf. & Inst. Code §15610.27). Financial abuse includes taking or keeping an elder's or dependent adult's property for a wrongful use, with intent to defraud, or by undue influence, including through a gift, agreement or change to an estate plan (Welf. & Inst. Code §15610.30). If liability is proven, the court must award reasonable attorney's fees and costs in addition to damages (Welf. & Inst. Code §15657.5). An action for damages generally must be filed within four years after the facts were or should have been discovered (Welf. & Inst. Code §15657.7). If a loved one is in immediate danger, call 911 or your local police first. To report suspected abuse of an elder or dependent adult in Orange County, call Orange County Adult Protective Services at (800) 451-5155 (24-hour hotline) (County of Orange Social Services Agency). Elsewhere in California, contact your county's Adult Protective Services office.
Section 850 petitions to recover property
When property that belongs to a trust or an estate is held by someone else, or someone else claims property held by the estate or trust, an interested person may ask the court to order it transferred under Prob. Code §850. If the court finds that a person in bad faith wrongfully took, concealed or disposed of the property, or did so through bad-faith undue influence or elder financial abuse, that person is liable for twice the value of the property recovered, and the court may also award attorney's fees and costs (Prob. Code §859). Section 850 is also the basis for Heggstad petitions, which confirm that assets left in a decedent's name belong to the trust. When those petitions are contested, we handle that litigation too. See our Heggstad petitions practice and how extrinsic evidence is used in contested Heggstad matters.
No-contest clauses
Many trusts and wills include a "no-contest" clause meant to disinherit a beneficiary who challenges them. California enforces these clauses only in limited situations: against a direct contest brought without probable cause, and, only if the clause expressly says so, against a challenge to whether the property belonged to the person making the transfer or against a creditor's claim (Prob. Code §21311(a)). A "direct contest" is one alleging forgery, lack of due execution, lack of capacity, menace, duress, fraud, undue influence, revocation or a disqualified beneficiary (Prob. Code §21310(b)). Probable cause exists if the facts known when the contest is filed would cause a reasonable person to believe there is a reasonable likelihood the requested relief will be granted after further investigation or discovery (§21311(b)). Before you file anything, we'll review whether a no-contest clause could apply to you.
Make Us Your California Trust and Probate Litigation Attorneys →
“Every family’s dispute is different, and the right path depends on the documents, the facts and the people involved.”
Always Complimentary Initial Consultations
Our singular focus is to provide individually-tailored legal advice that allows for a truly personal experience. We want to be your partner in life and business.
How the process works.
1. A complimentary 15-minute call
We'll listen to what happened, check for conflicts, and tell you whether your matter is one we can help with. If it is, we'll explain the next steps and how we charge for litigation work.
2. Document review and deadlines
We review the trust or will, any amendments, notices you've received, accountings and other records, and identify the deadlines that may apply, such as the 120-day period to contest a trust after a trustee's notification (Prob. Code §16061.8).
3. Requests and negotiation
Many disputes start with a written request for information, an accounting or a meeting. Sometimes that's enough to resolve the concern. If it isn't, it builds the record for the court.
4. Petition or response
When court involvement is needed, we prepare and file the petition, objection or response in the probate court and give notice to the interested persons.
5. Mediation and settlement
Many trust and estate disputes can be resolved through negotiation or mediation, which can save time and keep family matters more private than a courtroom. What is said in mediation is generally confidential and can't be used as evidence later (Evid. Code §1119). We prepare for mediation as carefully as for a hearing, so you can make an informed decision about any settlement.
6. Discovery, hearings and trial
If a matter doesn't settle, it moves through discovery (exchanging documents and taking testimony) and then to evidentiary hearings or trial. We'll keep you informed at every stage. A dispute can add time to an estate: probate by itself typically takes 12 to 18 months, and a contested matter can take longer. We can't promise a particular result or timeline.
What to bring to your call.
You don't need everything on this list. Bring what you have, and we'll help you figure out what's missing:
The trust, will and any amendments or codicils, including earlier versions if you have them
Any notice you've received, especially a trustee's notification, and the date you received it
Court papers, such as a petition, objection or notice of hearing, and the case number
Accountings, statements or other reports from the trustee or executor
Letters, emails and texts about the trust, the estate or the dispute
A short timeline of key events, such as illnesses, moves, new caregivers, document changes and the date of death
The names of the other people involved and their relationship to your loved one
Why families choose Schlau Rogers.
Schlau Rogers LLP is a premier California firm for estate planning, trusts and estates, and probate and trust litigation, with our office in Laguna Beach. Each attorney in our firm is licensed to practice in California, and we serve clients throughout California, including remotely. Because we also prepare estate plans and handle trust administration, probate and conservatorships, we understand how these documents are meant to work and where they tend to break down. We'll explain your options in plain English, give you a realistic view of the risks and costs of each path, and keep you informed along the way.
Meet your California trust and probate litigation attorneys.
Joshua Rogers, Partner
Laguna Beach estate planning lawyer
Tom Yacko, Of Counsel
Laguna Beach estate planning lawyer
Matthew Schlau, Partner
Laguna Beach estate planning lawyer
Trust and probate litigation FAQs.
How long do I have to contest a trust in California?
If the trustee has served you with the notification required after a trust becomes irrevocable, you generally have 120 days from service, or 60 days from delivery of a copy of the trust terms during that 120-day period, whichever is later (Prob. Code §16061.8). Different rules may apply if you weren't served or your claim is a different kind, so have your documents reviewed promptly.
How long do I have to contest a will?
You can object before the will is admitted to probate. After it is admitted, an interested person generally has 120 days to petition to revoke the probate of the will, with limited exceptions (Prob. Code §8270).
Will I lose my inheritance if the trust or will has a no-contest clause?
Not necessarily. California enforces no-contest clauses only in limited situations, such as a direct contest brought without probable cause (Prob. Code §21311). Whether a clause could apply depends on its wording and on what you plan to file, so we'll review it with you before anything is filed.
The trustee won't tell me anything. What can I do?
Trustees must respond to a beneficiary's reasonable requests for information and generally must account at least annually to current beneficiaries (Prob. Code §§16061, 16062). If a written request goes unanswered for 60 days, a beneficiary may petition the court to compel the information or an account (Prob. Code §17200(b)(7)). Often a well-documented written request is the first step.
Can a trustee be removed?
Yes. A court may remove a trustee for reasons including breach of trust, unfitness, a failure or refusal to act, or excessive compensation (Prob. Code §15642). While a removal petition is pending, the court may also suspend the trustee's powers or appoint a temporary trustee if trust property may be at risk.
Do trust and probate disputes always go to trial?
No. Many are resolved through negotiation or mediation, and what is said in mediation is generally confidential (Evid. Code §1119). Some matters do need a hearing or trial. We prepare every matter with that possibility in mind, but we can't predict the outcome of any case.
What does it cost to talk to you?
Your first 15-minute call is complimentary. Litigation fees depend on the matter, so we don't quote them on our website. If we're a good fit, we'll explain how we charge and put our fee arrangement in writing before any work begins. Book a complimentary 15-minute call.