Trust & Probate Litigation Attorney

37. Who can contest a will?

Any person with a financial stake in the outcome of the potential contest may make such a contest. Usual examples include a child or spouse who was excluded from the will, a child who receives a lesser portion of the estate than their siblings, children who don’t...

38. On what basis might someone contest a will?

Examples of reasons to challenge a will include: 1) A later will, if valid, would supersede the prior will; 2) The decedent lacked sufficient mental capacity to make the will; 3) The will was a product of fraud, mistake, or undue influence; or 4) The will was...

39. How long does the probate process take?

California law requires the personal representative to complete the probate process within 12 to 18 months. If they aren’t able to do so for some reason, then the personal representative must file a status report explaining what still needs to be done and how long it...

40. How do the decedent’s creditors get paid?

The personal representative provides formal legal notice to creditors. Creditors then have a fixed time frame in which to file their claim in the probate proceeding. If the personal representative approves the claim, then the bill is paid from the assets of the...

42. How are taxes handled in probate?

When a person dies, the date of death establishes the end of the tax year for the decedent, and establishes the start date for the decedent’s estate. The estate is a new, separate entity for tax and legal purposes. For federal taxes, the personal representative may...

43. What is a trust?

A trust is an arrangement in which property interests are legally held by one person (the trustee) at the request of another (the settlor) for the benefit of a third party (the beneficiary). The trust defines what happens to property held in the trust, especially...

44. What powers does a trustee have?

Generally, the trustee must collect, preserve, and protect assets belonging to the trust. In addition, a trustee will have all the powers which the trust documents expressly provide to them, unless it conflicts with California law or a contrary court...

45. Does a trustee have duties?

Yes. The law requires a trustee to: 1) Follow the legal instructions of the trust document; 2) Only act for the benefit of the beneficiaries; 3) Not favor one beneficiary over another; 4) Avoid personal conflicts of interest with the beneficiaries; 5) Never use trust...

47. What rights do trust beneficiaries have?

In addition to rights specifically identified in the trust document, beneficiaries have the right to receive notice of the existence of the trust, the right to receive a copy of the trust, the right to receive trust accountings and information about their interest in...

48. What if the trustee doesn’t tell me what is going on?

If you are a beneficiary of the trust, the trustee must keep you informed about the trust and its administration. If 60 days or more pass from the date you made a written request for information, then you can file a petition in probate court requesting the court to...

50. Do trusts end?

A trust only ends when it has been revoked or the terms of the trust have been satisfied for the termination of the trust, for example, upon the final distribution of the last of the trust’s assets.

51. What is conservatorship?

Conservatorship is a judicial process in which the probate court appoints a responsible person to be a “conservator” over another adult person, or “conservatee”. A conservator can be appointed to care for the other adult person, the other adult person’s assets, or...

53. What is guardianship?

Guardianship addresses the issue of who cares for a child when no parent is able to do so. The probate court can appoint a responsible adult as the “guardian” over the person of the minor child, the minor child’s assets, or both.