By: Roger J. Buffington, Esq.
Trust contests are sometimes a necessity when an inheritance activates upon the death of a loved one. Most commonly, an actual or potential beneficiary learns that a decedent’s trust and estate plan has been tampered with by means of a Probate Code Section 16061.7 “120 Day Letter”. This is a letter that a trustee is required to send all “interested persons” as the law defines them, within 60 days of the new successor-trustee accepting the role. Among other things, the 120 day letter advises the recipients that: a) the Trust has become irrevocable in whole or in part; b) the recipients have a right to request a copy of the trust writing; c) the name of the successor-trustee and the primary place of administration of the trust i.e. the mailing address; and d) a warning that the recipient has a strict time limit as to bringing any contest of the trust writing’s validity. Receiving a 120 letter is an important event, and it is a mistake to ignore it or let time pass before evaluating one’s options.
Trust contests normally arise when a beneficiary or potential beneficiary receives the 120 Day Letter and requests a copy of the trust writing, or discovers by some other means that someone has tampered with the estate plan of the decedent. Such tampering takes an infinite number of possible forms. The most common scenario is one in which a person, usually someone related to or close to the trustmaker/decedent, (called a “trustor” under California law) has exercised undue influence over the trustor to alter his or her bequests in favor of the influencer. It is not necessary that the trustor outright lacked testamentary capacity if and when this happened, although this is sometimes the case. Mere “excessive persuasion” as the law defines it is sufficient to constitute undue influence. The most common scenario, although certainly not the only one, is one in which an influencer isolates the trustor late in life, causes dependency, and then persistently urges the trustor to alter his or her estate plan to favor the influencer; sometimes even giving the entire estate to him or her. Most commonly, the other former beneficiaries learn of this sort of thing after receiving a copy of the trust instrument after the trustor’s death. Other times the family members may simply see the influencer take control of the decedent trustor’s assets without any notice at all. In either case, when a person becomes aware of such a situation, it is important to consult with a trust litigation attorney without delay. Particularly in the case of a 120 Day Letter notification, time is of the essence because courts take these deadlines very seriously.
Upon consultation with a trust litigation attorney, the potential beneficiary can evaluate whether a trust contest or some other type of legal action is justified or practical. There are many factors that go into this evaluation. Do not make that determination without counsel. Many trust litigation law firm, including Buffington Law Firm, offer a free legal consultation in which you will consult directly with an experienced trust litigation attorney to evaluate your potential case, determine the costs and benefits, and so forth. All consultations are completely confidential and protected by the attorney-client privilege. Call us today!