What are the most common causes of fights that lead to California trust and probate litigation?

There are many reasons that can lead to trust and probate litigation in California. But, in my opinion, there are three extremely common causes.

The first set of reasons surrounds arguments that the person who created a Trust or Last Will and Testament was not in his or her “right mind.” The argument goes that either the Trustmaker or Testator did not have the mental capacity to create his or her documents, or that they were under the duress or undue influence of someone who was exerting pressure on them. This does indeed occur often enough.

Such issues do not frequently crop up when estate planning is carried out with an experienced attorney however. That's because experienced attorneys usually employ several methods to prevent future challenges to the Trust or Will being created. As the primary precaution, experienced attorneys will always question and counsel clients alone to figure out their intent. If we feel the least bit uncomfortable with our clients circumstances, we will require him or her to go out and get an independent medical doctor to evaluate our client and say that he or she has capacity. Finally, as a boot and suspenders approach, I sometimes even have my clients go talk to a second attorney and get a “Certificate of Independent Review,” where the other attorney also discusses my clients wishes with him or her and confirms that their plan is exactly what he or she wanted. I have never had anyone successfully challenge one of my estate plans because of these precautions.

The second major area that leads to litigation deals with how a Trust or Will is interpreted. Unfortunately, many estate planning documents are not written clearly enough so that a layman, attorney and/or judge can all perfectly understand what the Trustmaker or Testator intended. Interestingly, this is not a huge issue when families get along well and the estate is being split “fairly.” Too often however, these prerequisites do not exist and the estate planning documents are unclear. This is particularly true with do-it-yourself documents such as Legalzoom, Nolo, and We The People Wills and Trusts. When you combine poorly written documents with families who have a history of discord (especially in the case of blended families) and/or the dispositive provisions in the Will or Trust favors beneficiary over another... Look out, because litigation is right around the corner! To prevent the likelihood of fights over the interpretation of estate planning documents, it is extremely important for people to hire competent counsel to clearly draft those documents in the first place.

The third common cause of trust litigation stems from “supposed bad acts” carried out by a Trustee, after the Trustmaker has passed away. When Trustees do not act reasonably or prudently, they breach their fiduciary duty. Sometimes the breaches are extensive, such as outright theft. This brings up the most overlooked, yet incredibly important, decision you can make with your trust: Choosing your Trustee. You must have a lot of faith in the person(s) you put in control to be your Successor Trustee(s). If you are unsure about anyone, you are probably better off hiring a private professional fiduciary or a bank to be the Trustee. Again, this is where an experienced estate planning attorney can guide clients and make all the difference for people setting up a Trust or Will. This is especially important when there are children from a prior relationship. In short, there are many reasons that lead to California trust and probate litigation but most of the time an experienced trust attorney can guide clients away from such pitfalls.