Last updated: October 2026
Probate litigation is a court dispute over a will, a trust, or the person managing an estate or trust after someone dies. In California, these cases are usually filed as petitions in the probate department of the superior court, not as ordinary lawsuits. Common examples are will and trust contests, petitions to remove a trustee or executor, accounting disputes, and claims to recover property taken from an estate or trust. Strict deadlines apply, and some contests must be filed within 120 days. Bay Legal represents beneficiaries, heirs, trustees and executors in these disputes statewide.
Probate litigation: a contested proceeding in probate court over whether a will or trust is valid, or over how an executor or trustee has managed an estate or trust.
Sivendra Ganesh Maraj is an outstanding lawyer. I consulted with him on an inheritance/probate matter. He was well-prepared and knowledgeable and quickly identified the key issues. He provided insightful legal advice that was also sensitive to the business and financial context. I appreciated his patient, friendly manner and would not hesitate to work with him and Bay Legal on future matters.
This review reflects one client’s experience. Results depend on the facts and law of each individual case and do not guarantee or predict a similar outcome in your matter.
What disputes does probate litigation cover?
Most disputes fall into one of the groups below. Several are often combined in a single petition, such as a request for an accounting, removal of the trustee and recovery of property.
Will contests
A will contest challenges whether a will is valid. Common grounds are improper signing or witnessing, lack of mental capacity under Probate Code section 6100.5, undue influence, fraud, duress and revocation. Under section 8252, the person offering the will must prove it was properly executed, and the person contesting it must prove the other grounds. Before the will is admitted, an interested person can file written objections under section 8250. After it is admitted, most interested persons have 120 days to petition to revoke the probate under section 8270.
Trust contests
A trust or trust amendment can be challenged on many of the same grounds as a will. The deadline is short. Under Probate Code section 16061.8, a contest must usually be filed within 120 days after the trustee serves the notification required by section 16061.7, or 60 days after a requested copy of the trust is delivered during that 120-day period, whichever is later.
Trustee and executor removal and breach of fiduciary duty
A fiduciary is a person, such as a trustee or executor, who must act in the beneficiaries’ interest. The court can remove a trustee under Probate Code section 15642 for a breach of trust, unfitness or failure to act. An executor or administrator can be removed under section 8502 for grounds such as mismanagement or long-continued failure to perform. A trustee who breaches the trust can be ordered to pay for the resulting loss, which is called a surcharge, under section 16440. An executor’s powers can also be suspended while a removal petition is pending under section 8500.
Accounting disputes
A trustee must account to current beneficiaries under Probate Code section 16062. If a trustee does not provide an account within 60 days after a beneficiary’s written request, and none was provided in the prior six months, the beneficiary can petition the court under section 17200. Beneficiaries can also file written objections to an account a trustee or personal representative presents for court approval.
Recovering property and financial elder abuse
A section 850 petition asks the court to decide who owns property and to order it transferred to the estate or trust. If someone took property in bad faith, section 859 makes that person liable for twice its value and allows the court to award attorney’s fees. Taking an elder’s property for a wrongful use can also be financial elder abuse under Welfare and Institutions Code section 15610.30.
Heirship and spousal property disputes
Many heirship and spousal property petitions are uncontested. Some become disputes, for example over who the heirs are or whether property is community property. The court decides who is entitled to distribution under Probate Code section 11700 and can confirm property to a surviving spouse under section 13650. Registered domestic partners have the same rights under Family Code section 297.5.
No-contest clauses
Many wills and trusts include a no-contest clause, which takes away a beneficiary’s gift if the beneficiary challenges the document. Under Probate Code section 21311, the clause is enforced against a direct contest only if the contest was filed without probable cause. Reviewing the clause is one of the first steps before any challenge.
Who can bring a probate or trust dispute?
Most petitions can be filed by an “interested person,” which Probate Code section 48 defines to include heirs, beneficiaries, creditors and others with a property right in the estate. Trustees and executors also go to court, either to defend their administration or to ask for instructions before acting on a disputed question. Bay Legal represents both sides:
- Beneficiaries and heirs who have not received a notification, an accounting or a distribution
- Family members who believe a will or trust amendment was the product of undue influence or incapacity
- Trustees, executors and administrators whose decisions are being challenged
- Surviving spouses and domestic partners in disputes over community property
How does a probate litigation case work?
- Document and deadline review. The will, the trust and every amendment, notices received, account statements and deeds are reviewed first. Any contest deadline is identified on day one.
- Written demand. A request for the trust documents or an accounting, or a demand letter, often resolves the issue or builds the record the court will review.
- Petition. The case is filed in the probate department of the superior court for the proper county. For an estate, that is usually the county where the decedent lived (section 7051). For a living trust, it is the county where the trust is principally administered (section 17005). A testamentary trust can also be heard where the estate is administered.
- Notice, objections and discovery. Interested persons receive notice and can file written objections. Contested matters can involve document requests, subpoenas and depositions.
- Mediation and settlement. Courts often order or encourage mediation or settlement conferences in contested probate matters. Mediation lets the parties agree on terms a court could not order. See mediation.
- Hearing or trial. Unresolved issues are decided by a probate judge. Section 825 provides that there is no right to a jury in probate proceedings unless the code expressly allows one.
Which deadlines apply to each type of dispute?
| Dispute | What you ask the court to do | Typical deadline | Statute |
|---|---|---|---|
| Will contest before admission | Deny probate of the will | Before the will is admitted (written objection at or before the hearing) | Prob. Code §§ 8250, 1043 |
| Will contest after admission | Revoke the probate of the will | 120 days after the will is admitted | Prob. Code § 8270 |
| Trust contest | Declare a trust or amendment invalid | 120 days after § 16061.7 notification, or 60 days after a copy requested in that period is delivered, whichever is later | Prob. Code § 16061.8 |
| Breach of trust | Surcharge the trustee for losses | Three years after an account or report discloses the claim, or after the claim was or should have been discovered | Prob. Code § 16460 |
| Accounting | Compel the trustee to account | After a written request goes unanswered for 60 days, if no account was given in the prior six months | Prob. Code §§ 16062, 17200 |
| Trustee removal | Suspend or remove the trustee | No fixed deadline; act promptly | Prob. Code § 15642 |
| Recover property | Transfer property to the estate or trust | Depends on the underlying claim | Prob. Code § 850 |
Deadlines can turn on the exact date a notice was served or a document was received. Treat the dates above as general rules and get advice before relying on them.
How much does probate litigation cost?
Cost depends on how far the dispute goes. A demand letter or a single petition costs far less than a contested trial with depositions and expert witnesses, such as a physician testifying about capacity. Bay Legal bills contested probate and trust litigation at an hourly rate. When the firm represents an executor or administrator in an uncontested, court-supervised probate, its fee follows the statutory schedule in Probate Code section 10810, subject to court approval. In some cases the court can shift costs. It must award attorney’s fees to a plaintiff who proves financial elder abuse under Welfare and Institutions Code section 15657.5, and it may award fees against a person who took property in bad faith under section 859. Bay Legal explains the fee arrangement in writing before any work begins.
How long does probate litigation take?
A focused petition, such as a request for an accounting with clear facts, may resolve in a few months. Will and trust contests that involve capacity or undue influence, expert testimony and depositions commonly take a year or more. Mediation can shorten the timeline considerably. Court calendars also vary by county. In Los Angeles County, nearly all probate matters are heard at the Stanley Mosk Courthouse downtown. In Santa Clara County, probate is heard at the Downtown Superior Court in San Jose.
Frequently Asked Questions
What is probate litigation in California?
Probate litigation is a contested court case about a will, a trust, or the conduct of an executor or trustee. Most of these cases are filed as petitions in the probate department of the superior court. Typical disputes include will and trust contests, petitions to remove a fiduciary, accounting disputes, and claims to recover property that belongs to an estate or trust.
How long do I have to contest a trust in California?
Usually 120 days. Under Probate Code section 16061.8, the deadline runs 120 days from service of the trustee’s notification under section 16061.7, or 60 days after you receive a copy of the trust you requested during that period, whichever is later. If you miss the deadline, you generally lose the right to contest. Note the date the notice was served.
Can I remove a trustee who refuses to give me information?
Possibly. A trustee must keep beneficiaries reasonably informed and must account under Probate Code section 16062. If a trustee ignores a written request for an account for 60 days, and gave no account in the prior six months, a beneficiary can petition under section 17200. Repeated failure to act can also support removal under section 15642. Courts often order an accounting first.
Will a no-contest clause cost me my inheritance?
Not automatically. Under Probate Code section 21311, a no-contest clause is enforced against a direct contest only if the contest was brought without probable cause. Probable cause exists if the facts known to you would lead a reasonable person to believe the relief you seek is reasonably likely to be granted after further investigation. Have the clause and your evidence reviewed before you file.
What if I am the trustee or executor being accused?
You are entitled to defend your administration. A trustee or executor can respond to a petition, file objections, present an accounting and ask the court to approve past actions. A trustee can also petition under Probate Code section 17200 for instructions before acting on a disputed question. Responding early, with complete records, often narrows the dispute and reduces the risk of a surcharge.
Related Questions
What is undue influence?
Under Probate Code section 86, undue influence has the meaning in Welfare and Institutions Code section 15610.70: excessive persuasion that overcomes a person’s free will and results in inequity. Courts look at the person’s vulnerability, the influencer’s authority, the tactics used and the fairness of the result.
What is a surcharge?
A surcharge is a court order requiring a trustee to pay for losses caused by a breach of trust. Under Probate Code section 16440, the court can charge the loss, the trustee’s profit, or the trust’s lost profit. It may excuse a trustee who acted reasonably and in good faith.
What is a section 850 petition?
A section 850 petition asks the probate court to decide who owns property and to order it transferred to the estate or trust. It is used when someone else holds property the decedent owned, or when an asset meant for a trust was never retitled.
Is there a jury in probate court?
Usually not. Probate Code section 825 provides that there is no right to a jury trial in probate proceedings unless the code expressly allows one. Most will contests, trust contests and fiduciary disputes are decided by a probate judge.
About the attorney
Ryan R. Wong handles probate and trust litigation at Bay Legal. Ryan represents beneficiaries, trustees, executors and families in petitions to compel an accounting, remove a trustee, recover trust property under Probate Code section 850, and contest or defend trusts. Ryan has practiced in the probate courts of Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties and holds an LL.M. in Taxation from Chapman University. Bay Legal does not provide tax advice.
Sivendra Ganesh Maraj handles estate planning and helps with pre-litigation review of trust and estate disputes before a matter goes to court.
Talk to a California probate litigation attorney
I called Bay Legal to inquire about Trust Beneficiary Representation and received excellent customer service. … I had an outstanding experience with Sivendra. He demonstrated professionalism, integrity and a deep understanding of Trust Law. He listened to my concerns and was extremely patient! He clearly explained the Trust Administration process and put me at ease. … Sivendra responsiveness and genuine concern for my case, really impressed me. He offered strategic advice and made me feel confident in my next step.
This review reflects one client’s experience. Results depend on the facts and law of each individual case and do not guarantee or predict a similar outcome in your matter.
If you have received a trust notification, suspect a will was signed under pressure, or are a trustee facing a challenge, check your deadline first. To discuss a probate or trust dispute, call the office nearest you or email intake.
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This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.
Related guides
- Contested Probate in California: When Heirs Disagree
- Probate Mediation in California: How It Works
- Executor Misconduct and How to Remove an Executor in California
- Trust Litigation Mediation in California: Settling Trust Disputes
- The Cost and Timeline of Trust Litigation in California
- Sibling and Co-Beneficiary Disputes Over a Trust in California
- Sibling Disputes Over an Estate in California: Your Options
- California Trust Litigation: An Overview
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