By: Roger J. Buffington, Esq.
In this brief Blog article, we will explain what a Trust petition is, and what it does. We will also explain how this relates to “avoiding probate” which of course is one of the main objectives of creating a trust. While this may sound somewhat elementary, some of the subject matter contained in this article confuses even some attorneys. Starting at the beginning, in a properly structured estate plan based upon a trust, a family or individual creates and signs a trust writing that governs the administration of the trust. The most important provisions of most trusts relates to 1) who the beneficiaries are; and 2) who will be the successor-trustee or trustees when the original trustors pass away. There are many other important provisions of a trust, but these stand out as the first thing that people want to know once a trust’s provisions become known. Most commonly a trust is revocable until one of the trustors passes away. Thus, if a couple creates a trust, the trustors can revoke the trust or amend it while both are alive. Once one or both trustors pass, most commonly part or all of the trust becomes irrevocable, meaning that it cannot be amended or revoked.
Trusts differ from wills in one very fundamental way: a trust is designed to operate outside of the court system without the need for a probate. This is in sharp and direct contrast with a will, which under most circumstances (the small estate exception being the main exception) which cannot operate without being part of a probate process. The prevailing (and largely accurate) wisdom is that the probate process is expensive and time-consuming. For this reason, the overwhelming majority of estate plans in recent decades have utilized a living (“revocable”) trust as its centerpiece. Most people create a trust so that their trust estate, which normally would be the entire estate of the individual or family creating the trust, can pass to the beneficiaries without the need for a probate or use of the court system. In the case of a trust, when the trustmakers (“trustors”) have passed and the trust becomes irrevocable, the person or persons whom the trust designates as the successor-trustees can carry out the trust provisions without any use of the court system.
Unfortunately, sometimes a trust does not operate the way that the trustors intended. Perhaps the successor-trustee refuses to disburse the assets thereby necessitating court action. Sometimes a person seeks to challenge the trust on some basis, such as an allegation of undue influence against or the alleged incapacity of, the trustor. When a person wishes to seek court intervention in the trustee’s administration of the trust, he or she must normally do so by bringing a trust petition. A trust petition is a form of lawsuit, as in, for example, a civil case involving breach of contract or some other civil grounds. There are specific rules governing trust petitions and the scope of trust petitions is set forth at Probate Code Section 17200, which is the statute upon which most California trust petitions are based. It allows the probate court to do many things related to trust litigation such as determine the validity of a trust (i.e. whether it was the product of undue influence or incapacity), to instruct the trustee, to interpret the trust if the drafting is unclear, and many other things. [See generally Cal..Probate Code Section 17200].
Accordingly, by bringing a trust petition, a person initiates a process somewhat akin to a civil lawsuit whereby the trust and its trustee are brought within the jurisdiction of the applicable probate court. Absent a trust petition, as explained above, a trust will normally operate completely outside of the court system. The trust petition must explain the issues being disputed, the standing of the petitioner to bring the petition, and many other things. Ultimately, a petition is asking the court to decide the things that the petitioner is disputing. Like a civil lawsuit, a trust petition, being a form of lawsuit, may entail discovery and other aspects of trial preparation. Eventually the probate court will schedule and hold an actual trial in which the court hears evidence and decides the disputed issues.
This all sounds fairly fundamental, and it is, but there is often a surprising amount of confusion about the process. One of the most common points that even some lawyers misunderstand is the difference between a motion and a petition. As explained above, a petition is essentially the initiation of a lawsuit which brings the trust and its trustee within the jurisdiction of the probate court. Once this is accomplished, the probate court acquires broad equitable powers to issue any order to carry out its “express powers to supervise the administration of the trust.” [Schwartz v. Labow (2008) 164 CA4th 417, 427-428]. The court may appoint or remove a trustee [Probate Code § 17200(b)(10)] and make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part [Probate Code §§ 17206, 15642(e); see also Estate of Heggstad (1993) 16 CA4th 943, 951 (probate court has inherent power to decide all incidental issues necessary to carry out its express powers to supervise administration of the trust.)]. Essentially, a motion is brought inside of a petition to cause the probate court to issue some kind of order affecting the trust; usually but not always related to the ultimate relief sought by the petitioner. A motion is the proper way to cause a court to do something before trial, which is called interlocutory relief. This is often a way to deal with a misbehaving trustee without having to wait until the actual trial, for example.
This article is somewhat simplified and we intend it solely as a basic primer on the trust petition process. If you are involved in a trust dispute, Buffington Law Firm’s trust litigation attorneys invite you to contact us for a free legal consultation. In the consultation you will speak with an experienced trust litigation attorney in order to determine if we can help. All consultations are completely confidential and protected by the attorney-client privilege, and there is never any obligation.