The confusing world of Trust and Will lawsuits, it can be quite a quagmire.  Especially if you are looking on the internet for information because every state does things differently when it comes to the trust and will arena.  Even the term “Probate Court” can mean vastly different things in different states.

Let me see if I can demystify some of the confusion I hear about as it relates to California Trust and Will lawsuits.

Practice Area:
http://www.aldavlaw.com/practice-areas/litigation/estate-and-probate-litigation/ 

1.         Can a Court other then where the Trust matter is filed remove a Trustee?  No.  In California, Trust matters are filed in the Probate division of the Superior Court.  There is no other Court that can take a Trust action and remove a Trustee.  Oftentimes I hear people ask if they can bring a “civil suit” after something is filed in Probate, or a small-claims action, none of that is possible (generally speaking) if you are dealing with a Trust or Will matter because the proper venue for anything that takes place under the Probate Code is the Probate division.

I have heard that some states (like New York) provide a choice of venue between Probate and civil, but that does not apply to California.

2.         Is Probate Court the same as Civil Court in California?  Yes.  Actually the term “Probate Court” is a misnomer because both Probate and civil departments are part of the Superior Court (as is family law “court”).  That means the “Probate Court” has all the same powers and abilities to decide and rule on lawsuits as the civil department of the Superior Court.

3.         Can a Trust beneficiary file a legal action in the state where the beneficiary resides instead of in the state where the Trustee resides?  No.  Under California law, any action against a Trustee, whether it be a Trust contest, and accounting, or some other breach of trust action, must be filed where the “place of administration” is located.  If the Trustee has not specified a place of administration, then the proper venue is where the Trustee resides or his/her place of business.  In any event, jurisdiction and venue usually depend on the location of the Trustee, which is where the action is filed, NOT the location of the beneficiary.

4.         Is Probate Court only for filing Wills (or estates that have no Will)?  No.  the Probate division of the California Superior Court is also the forum for Trust lawsuits, conservatorships, power of attorney disputes, and oftentimes guardianships (dealing with minors—although the venue for guardianships can vary from county to county in California).

5.         If a person dies with a Will, does it still require Probate?  Yes.  Wills do not avoid probate.  Probate simply being a process where people can prove the validity of the Will and then ask the Court to start the estate administration process following the terms of the Will.  If a person dies without a Will, probate is also required.  What’s the difference then between having a Will and not having a Will?  While probate is required in both cases, if you have a Will then your estate will pass pursuant to the Will provisions.  And your named executor will act to manage your estate during the probate process.  If you don’t have a Will, then your assets pass per the intestate statutes, which generally follows bloodlines to children first, and then to more distant relatives if there are no children.

So there is a brief recap of five of the most confusing myths and misconceptions about probate.  Do you have a misconception or question you need answers on California probate or trust actions?  Feel free to send me an email at keith@aldavlaw.com and I will include it in a future blog post on the myths of probate.

  • Lance talkington

    my grandmother recently passed away and I am a beneficiary my aunt is the executor now she hasn’t served me any papers about the trust and refuses to give me any paperwork concerning anything whatsoever and and now she will I lived at my grandma’s house helping her for 13 years she was 99 when she passed and now my aunt got an eviction lawyer is trying to throw me out on the street and she sued me for back rent which I’ve never had an agreement with her of any kind now what what is when I go to court in a few days for this unlawful detainer what should my defense B it hasn’t gone to probate she’s trying to avoid that she hasn’t done any of her fiduciary duties will this be a problem in a civil court case or can I bring this up