Other Probate Petitions2020-05-29T03:23:16+00:00

Other Probate Petitions

Other Probate Petitions (Removal, Competing Petitions, Motions to Compel, Litigation)

Probate can be a complicated process, particularly when conflicts arise between involved parties or when the original probate petition doesn’t contain all of the relevant information about the deceased’s estate. In those cases, probate may be more litigious and additional issues may arise during the process.

Removal of a Trustee

A trust is a legal entity that can “own” assets. As part of an estate plan, it can be a useful tool to preserve assets and avoid probate. The trustee manages the assets of the trust and while many people are their own trustees while alive, they also often name successor trustees to continue managing trust assets upon their death.

A trustee has legal obligations to the trust and problems sometimes arise when beneficiaries or co-trustees are concerned about the management of the trust. As a result, under California Probate Code §15642, a trustee can be removed by the court or through a petition by a beneficiary or co-trustee if the trustee:

  • Has committed a breach of trust;
  • Is insolvent or otherwise unfit to manage the trust;
  • Is hostile or not cooperative with a co-trustee, impairing the administration of the trust;
  • Fails or declines to act;
  • Has compensation excessive under the circumstances;
  • Also drafted the trust agreement;
  • Lacks capacity; or
  • Cannot resist fraud or undue influence.

A trustee can also be removed for other good causes.

Competing Petitions

At times, many people will have additional or conflicting information related to an estate. For example, the original probate petition may indicate that the deceased did not have a will. If you have the deceased’s will, you will want to provide that to the court in a competing petition. Basically, if you want to contest probate or provide additional information to the probate court for any other reason, you may need to file a competing petition.

Motions to Compel

If you are an interested party in a probate petition, it may be necessary for you to discover more facts about the assets of the estate, the wishes of the deceased, the plans for distribution, or even documents relevant to the estate like account statements or the will and trust documents. Frequently, a California attorney will file interrogatories or demands, requesting additional information and documents on your behalf. If the information isn’t provided or you don’t think it is entirely accurate,  you may need to file a motion to compel to ask the court to order the other party to provide the information or documents or to prevent them from relying upon it at a trial or during probate hearings.

Litigation

At times, beneficiaries or parties with an interest in a deceased’s estate may disagree about the decedent’s wishes. For example, if someone alleges that the decedent lacked the capacity to make a new will or fraud was involved, there may be litigation over the validity of the will. If a dispute arises over whether property was community property to which the surviving spouse or domestic partner is entitled, there may be litigation of that specific issue. There could also be a dispute over the assets owned by the decedent. Once the initial probate petition is filed, interested parties can challenge or agree with the pleadings and file their own petitions, just as in any civil litigation matter. When contested issues arise, the probate court may often conduct hearings or a trial to determine the facts at issue.

While the probate petition process can seem intimidating and complicated, particularly after the death of a loved one, it isn’t something you have to do on your own. As a California trusts and estates attorney with decades of experience, I can help you find solutions and make the process go as smoothly as possible. Call me at 714-639-1990 or send me an email to schedule a consultation.

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