Trust & Probate FAQs

Why was a Petition filed in Probate Court if my parents had a trust?

The purpose of an estate plan is to avoid the probate process and streamline the distribution of the estate. Any heir may file a Petition in Probate court if they believe the trust is invalid, the trust is the result of undue influence, or if a trustee breached his fiduciary duty or is not fulfilling his role as administrator. Probate is a court process occurring at an individual’s death, where a Judge examines the trust along with evidence alleging wrongdoing and determines the administration of the estate. Probate can involve significant delay and expense because it proceeds as a civil action and culminates in a bench trial. Learn more.

Can I challenge a Trust?

A party can challenge a trust for many reasons. A family member may have concerns regarding being excluded from a loved one’s estate plan. Or the trust or will may not meet the formal requirements such as when the trust was not signed or witnessed as required under California law. One specific issue that may be raised is whether the testator was subject to circumstances of undue influence before or during the execution of the trust. Learn more.

What is Undue Influence?

Undue influence occurs when a testator is influenced to make certain gifts or not make certain gifts when executing a trust. California Welfare and Institutions Code §15610.70(a), 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.” learn more.

Indications of Undue Influence

  • A vulnerable victim
  • A powerful influencer
  • An improper action
  • An unfair result

Does my relationship carry a presumption of Undue Influence?

It is important to know that under California law, certain confidential or fiduciary relationships between the decedent and a beneficiary can create a presumption of undue influence, which can consequently invalidate a will. A confidential relationship can exist whenever one person places trust and confidence in another. The question of whether a confidential relationship exists is always a question of fact and depends on the circumstances of each case. Confidential or fiduciary relationships can include, but are not limited to, relationships with attorneys, trustees, family members and friends. Learn more.

Can I be blamed for Undue Influence for writing a Will?

California Probate Code §21380 specifically provides that an instrument is presumed to be the product of undue influence if a person in a fiduciary relationship with the testator “transcribed” the will or “caused it to be transcribed.” A will is presumed to be the product of undue influence in the circumstance that the preparer of the will or a care custodian of the testator is a beneficiary of the subject will. A will is also presumed to be a result of undue influence if a beneficiary is a relative, cohabitant, or employee of the above stated individuals. Learn more.

What can I do if I did not inherit as my parents told me I would?

Many times, people are surprised to learn that a trust does not leave them the inheritance they expected. This can occur when property has not been properly placed into a trust, changes were made to exclude certain heirs, or a trustee has mismanaged trust property. These issues can be resolved in the Probate court where a Judge will determine the full administration of a trust. Learn more.

To speak with an experienced attorney in Cottle Keen Lopiccolo & Heyde’s Trust & Probate practice, please call (714) 997-7870, or click here to contact CKLH by email.

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254 S. Glassell Street
Orange, CA 92866

(714) 997-7870

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