2011: Challenging a Living Trust in Probate Court in San Diego

In Probate Court in San Diego, challenging a living trust is very difficult and extremely complicated. Challenging a living trust is more difficult than challenging a will. Our law office recommends revocable living trusts over wills for most clients. You want to have your wishes carried out when you have passed away and no guarantees can ever be made however some strategies are better than others. In the area of estate planning, to have the best chance of avoiding a successful challenge when you are deceased, consider a revocable living trust over a will. Another advantage of a revocable living trust is that the distribution of your assets can be much quicker than with a will and probate proceedings as well as trying to avoid probate legal fees and costs which can be very significant and are taken out of the value of the estate. If you are considering challenging a living trust in San Diego in the probate court, please feel free to contact us so you can discuss protecting your rights and trying to obtain your goals.

The first issue may be whether the person executing the trust lacked the mental capacity at the time the trust was executed. In order to contest a living trust in San Diego under lacking mental capacity, elements under the Probate Code need to be met. A person lacks the mental capacity to enter into a revocable living trust unless the person can communicate verbally or by other means the decision they are making and also to understand the following: the significant benefits, risks and reasonable alternatives; the probable consequences for the person making the decision and the duties, responsibilities and rights created by the decision. There may need to be expert medical testimony as to the mental capacity or lack of mental capacity.

The second issue may be whether or not there is undue influence. Undue influence can be proved factually when the influence of another person eliminates the freedom of a donor or testator. This can create a ground for challenging a living trust. Undue influence may be demonstrated by the relationship of the parties and, under California law, certain care takers are included. In addition, undue influence may occur by insistence which is excessive. These are factual issues which must be proved with evidence and/or witnesses and often both.

If a living trust is contested, the person bringing the contest must file a lawsuit against all of the individual trust beneficiaries. A living trust is also a private document so the terms and conditions of the living trust are not available to the general public. The trustee of a living trust, as opposed to the probate and/or challenge in probate court of a will, is not requires to give notice of the living trust in the same manner as a will.

In conclusion, challenging [contesting] a living trust in San Diego is most difficult. Make sure to obtain expert legal advice before contesting and the attorney can use their training, education and experience to suggest both techniques and strategies to try and protect your legal rights as well as trying to obtain your legal goals. The consequences of contesting a trust and failing to prevail can be significant so it is essential to have the proper analysis first.