How to Start a Trust Contest in California
California trust contests are started by filing a petition in the probate court. The petition for the trust contest must state how the petitioner (the person who filed the petition) would or should get more if they win the case, the facts showing you are in the right probate court (also known as venue), and the facts supporting your claim. The petition is not a form document or judicial council form that simply gets filled in and filed with the court. The petition must state the facts supporting your case showing why the trust should be set aside.
The petition must state the reasons the trust should be set aside. For example, if you believe the trust was created at a time the settlor was mentally incompetent then the petition has to state that as a fact. If you don’t know for a fact the settlor was incompetent then you can make the claim on “information and belief.”
Certain allegations, such as fraud, must be plead with specificity. This means your petition has to state the underlying facts supporting your fraud claim. You must state enough facts to show there is some proof of each element of the fraud claim.
Whatever the reason for challenging the trust you must file your petition in a timely way. If the trustee has sent you the statutorily required notice then you only have 120 days from the time you receive the notice to file your case. If the trustee has failed to provide you with this notice then you may have up to four years to file your lawsuit.
Once your trust contest has been filed you will have to serve your petition on the trustee, the trust beneficiaries, and anyone else whose interest in the trust may be affected by your lawsuit. Some people can be served by mail and some will require personal service. Service of the parties or potential parties is usually a task performed by your attorney.
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