Litigation can be a long, difficult and emotional process. Probate litigation in particular, given the general fact that it is usually family members litigating against one another. It is useful to have an idea of what to expect at the outset of litigation, or even better, before litigation begins. Types of Probate Litigation “Probate Litigation” is a general term that can encompass many things, including:

• Literally “Probate Litigation.” When a will or intestate estate is submitted to the court for probate, the petitioner, typically one of the heirs, submits his or her name to be appointed as executor of the will or the estate. However, other heirs may not the petitioner is the best one for the job. In that case, the heir can file objections, setting forth the specific reasons the petitioner is not fit to do the job, a “competing petition,” asking the court to name them as the executor, or both.

• Will Contests. This is a specie of probate litigation with very strict requirements and time limits. A will contest, which differs from the “probate litigation” described above, seeks to challenge the content and/or the existence of the will itself. For example, a will can be invalidated on the basis that it was executed when the testator lacked capacity, that it was the product of undue influence, or that it was simply forged. When filing a will contest, a summons must be issued as in a civil lawsuit. (See California Probate Code §8250) The will can be contested even after it has been admitted to probate. But be wary. Once the will is admitted, you only have 120 days from the time the will was admitted to probate to bring a will contest. (See California Probate Code §8270)

• Trust Litigation. Trust litigation will usually fall into one of two basic fact scenarios. The first is a “trust contest,” which is similar to a will contest, described above. In a trust contest, one party will seek to invalidate a trust, or an amendment to a trust, based on lack of capacity, undue influence or fraud (forgery).

The second is an action for “breach of fiduciary duty.” This will arise when a properly acting trustee is not completing their duties in a variety of ways, which can include: not keeping the beneficiaries properly informed, unreasonably delaying in administering and distributing the trust assets, or stealing trust assets or using trust assets for their own personal gain. In these cases, the petitioner can seek to compel an accounting, or to suspend or remove the trustee from office. Many of the trust petitions that can be brought have their basis in California Probate Code §17200.

• 850 Petition. An “850 Petition” is based on California Probate Code §850, and is a very versatile device that can apply to intestate estates (people who pass away without a will), wills, trusts, or conservatorships. An 850 petition can be used to return property to an estate or trust that has wrongfully been removed. It can also be used to take property out of an estate or trust that has wrongfully been put into it.

•  Contested Conservatorships. A conservatorship can be established when a person can no longer care for their own affairs. This can happen in the case of a special needs adult, an adult who has lost capacity due to old age, infirmity, or perhaps was badly injured in an accident. When a petition for a conservatorship is filed, an interested person may object, and challenge the person who is seeking to be conservator, or even challenge that a conservatorship is needed at all. Persons who can object to a conservatorship include the proposed conservatee, and the proposed conservatee’s children. Often, one child will petition to be the conservator, and the other children will challenge that request based on allegations that the petitioner is taking advantage of the proposed conservatee. Additionally, a person under a conservatorship can petition the court to have the conservator removed, either based on the unfitness of the conservator, or based on the fact that their medical condition has improved to a degree where a conservatorship is no longer needed.

Author: Brian Ramsey [email protected]