California Trust Contest Attorney

Last updated: October 2026

To contest a trust in California, a beneficiary or other affected person files a petition in probate court under Probate Code section 17200 asking the court to declare the trust, or an amendment to it, invalid. If the trustee served the required notice, the deadline is usually 120 days after service. Common grounds are lack of capacity, undue influence, fraud and an amendment that was not properly made. Bay Legal represents people bringing and defending trust contests throughout California.

When can you contest a trust?

Usually only after the person who made the trust, called the settlor, has died or the trust has otherwise become irrevocable. While a competent settlor can still revoke the trust, the settlor holds the beneficiaries’ rights and the trustee’s duties run to the settlor (Probate Code section 15800). If the settlor becomes incompetent, beneficiaries gain the right to a copy of the trust and to information, but not a right to challenge its validity during the settlor’s life.

How long do you have to contest a trust?

When a living trust becomes irrevocable at the settlor’s death, the trustee must serve a notification on each beneficiary and each heir within 60 days (section 16061.7). The notice must warn, in boldface, about the contest deadline. Under section 16061.8, a contest must be filed within 120 days after the notice is served, or 60 days after a copy of the trust requested during that period is delivered, whichever is later.

If no proper notice was served, the 120-day deadline does not start. Delay can still bar a contest, so act promptly. A trustee who fails to serve the notice can be liable to a beneficiary for resulting damages, attorney’s fees and costs (section 16061.9).

For contests of a will, see will contests.

What are the grounds to contest a trust?

Lack of capacity

The capacity standard depends on the document. A simple amendment that works like a will is measured by the testamentary capacity test in section 6100.5 (Andersen v. Hunt (2011)). A more complex trust is measured under the general capacity rules in sections 810 to 812. Either way, a diagnosis alone does not prove incapacity.

Undue influence and fraud

The same undue influence rules that apply to wills apply to trusts and trust amendments. A gift to the person who drafted the trust, or to certain care custodians, is presumed to result from fraud or undue influence under section 21380. Taking an elder’s property through a trust can also be financial elder abuse under Welfare and Institutions Code section 15610.30.

An amendment that was not properly made

A revocable trust can be amended by the method the trust describes or by a signed writing delivered to the trustee (sections 15401 and 15402). The trust’s own method is required only if the trust makes it exclusive (Haggerty v. Thornton (2024) 15 Cal.5th 729). An agent under a power of attorney cannot amend a trust unless the trust expressly allows it.

No valid trust was created

A trust requires an intention to create it, trust property and a beneficiary (sections 15201 to 15205). A trust of real property must be evidenced by a signed writing (section 15206). Unlike a will, a trust does not need witnesses.

How does a trust contest work?

1. Get the trust and every amendment. A beneficiary can ask the court to compel the trustee to provide a copy of the trust terms (section 17200).
2. Calendar the deadline. Note the date the § 16061.7 notice was served and the date any requested copy arrived.
3. Review any no-contest clause before filing (see below).
4. File the petition. The petition asks the court to determine the validity of the trust or a trust provision. It is drafted on pleading paper and filed in the probate department of the county where the trust is principally administered (section 17005).
5. Give notice. Trustees and beneficiaries receive at least 30 days’ notice of the hearing. No summons is required (section 17203).
6. Discovery and settlement. Civil discovery rules apply, and courts often order or encourage mediation or a settlement conference. See mediation.
7. Hearing or trial. A probate judge decides the case; there is no jury (section 825).

Does a no-contest clause apply to a trust contest?

A no-contest clause is enforced against a direct contest only if the contest was filed without probable cause (section 21311). A clause in the original trust does not automatically cover later amendments. It reaches a later amendment only if that amendment contains the clause or specifically refers to it (section 21310).

What happens if a trust contest succeeds?

If the court invalidates an amendment, the trust is generally administered under the last valid version. If a gift fails under the section 21380 presumption, the trust operates as if that beneficiary had died first (section 21386). If the whole trust is invalid, the property may pass under a pour-over will or by intestacy.

Who pays the legal fees in a trust contest?

Each side usually pays its own attorney’s fees (Code of Civil Procedure section 1021). A trustee who defends an amendment that benefits the trustee personally generally cannot charge those fees to the trust, because the trustee should stay neutral in a dispute between beneficiaries (Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221). The result can differ when the trust directs the trustee to defend contests. A beneficiary who fails to rebut the section 21380 presumption bears all costs, including attorney’s fees.

Bay Legal bills trust contests at an hourly rate and explains the arrangement in writing before work begins.

Frequently Asked Questions

Can I contest a trust while the person who made it is alive?

Generally no. While a competent settlor can revoke the trust, the settlor holds the beneficiaries’ rights under Probate Code section 15800, and there is no procedure for challenging the trust’s validity. If the settlor becomes incompetent, beneficiaries can obtain a copy of the trust and information about its administration. A contest usually waits until the settlor’s death.

What if I never received a trust notification?

The 120-day contest deadline under Probate Code section 16061.8 starts only when a compliant notification is served. If you never received one, that deadline has not started, but delay can still bar a contest, so act promptly. A trustee who fails to serve the notification can be responsible for a beneficiary’s damages, attorney’s fees and costs under section 16061.9.

Does a trust amendment need witnesses or a notary?

No. Unlike a will, a trust amendment does not require witnesses. Under Probate Code sections 15401 and 15402, a revocable trust can be amended by the method the trust describes or by a signed writing delivered to the trustee, unless the trust makes its own method exclusive. Whether the settlor had capacity and acted freely are separate questions.

Can I challenge just one trust amendment?

Yes. Probate Code section 17200 lets the court determine the validity of a trust provision, and the California Supreme Court has held that this includes amendments. A person who would be a beneficiary if the amendment were invalid has standing to file. The trust is then generally administered under the last valid version.

Will a no-contest clause cost me my share?

Not if you have probable cause. Under Probate Code section 21311, a no-contest clause is enforced against a direct contest only when it was filed without probable cause. A clause in the original trust also does not reach a later amendment unless that amendment contains or specifically refers to the clause. Have the documents reviewed before filing.

Related Questions

What is a section 16061.7 notification?

It is a notice the trustee must serve on beneficiaries and heirs within 60 days after a trust becomes irrevocable at the settlor’s death. It must include a boldface warning that a contest is due within 120 days.

Can someone with a power of attorney change a trust?

Only if the trust expressly allows it. Under Probate Code section 15401(c), an agent under a power of attorney cannot modify or revoke a trust unless the trust instrument permits it.

What capacity is needed to amend a trust?

It depends on the document. A simple, will-like amendment is measured by the testamentary capacity test in Probate Code section 6100.5. A more complex instrument is measured under the general capacity rules in sections 810 to 812.

Can a trustee use trust money to defend a contest?

Not when the trustee is defending an amendment that benefits the trustee personally in a dispute between beneficiaries. Courts expect the trustee to stay neutral, unless the trust directs the trustee to defend contests.

About the attorney

Ryan R. Wong handles probate and trust litigation at Bay Legal, including trust and will contests, petitions to compel an accounting or remove a trustee, and petitions to recover trust property under Probate Code section 850. Ryan has practiced in the probate courts of Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties. Trust contests are part of Bay Legal’s probate litigation work within its Probate & Trusts practice.

Talk to a California trust contest attorney

If you received a trust notification, check the date it was served and count 120 days. To discuss a trust contest, call the office nearest you or email intake. For questions about running a trust rather than challenging it, see trust administration.

Bay Legal, P.C. — serving California statewide

Northern California office
667 Lytton Ave Ste 3, Palo Alto, CA 94301
(650) 668-8000

Southern California office

3211 Cahuenga Blvd W Ste 212, Los Angeles, CA 90068
(213) 668-8000
Intake: intake@baylegal.com
Fax: (650) 963-0041

Website: https://baylegal.com

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.