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A typical trust allows a third party to keep or use assets on behalf of the beneficiary. Usually, a trust is established by a person who wishes to transfer property to an heir. A constructive trust, on the other hand, is not a true trust because it is established by the courts, not an individual. Instead, it is a legal remedy to correct “unjust enrichment” that can result from undue influence, fraud or any defective trust or will. Additionally, if a trustee commits a breach of fiduciary duty by misusing a traditional trust, a constructive trust can restore the property in question to the rightful owner.

Charles Triay, probate lawyer and founder of Triay Law Office, has over 30 years of experience with contested and defective wills in Northern California. Additionally, he has specialist certifications in probate, estate planning and trust law. If you believe someone fraudulently obtained property from a relative, possibly through a defective will, contact Charles Triay for information about constructive trusts.


In certain cases, a court order may establish a constructive trust in order to essentially right a wrong that resulted in a person taking wrongful possession of property. In order for the courts to consider a constructive trust, you and your probate lawyer must demonstrate:

  1. The existence of property. If the defendant took possession of physical property such as an heirloom, this requirement may be easily met. However, if the defendant obtained money through fraud or misrepresentation, you and your lawyer will have to prove that the defendant used that money to buy the property in question.

  2. Your right to the property as the plaintiff. Often, this requires proof that you are the rightful heir to the money or property in question.

  3. The defendant wrongfully acquired the property. Most often, the defendant obtained the property through dishonest or illegal means.

If the court finds that the defendant has unjustly benefited from property that is rightfully yours, a constructive trust can be used to make things right. By court order, a constructive trust imposes trustee status on the defendant. This means that he or she can hold the property with limited legal power but cannot benefit from it.

This trustee relationship typically continues only a short time, since the court will then order the defendant to transfer the property in question to the rightful beneficiary. This helps remedy the losses suffered by the plaintiff and ensure that the defendant does not continue to receive wrongful benefit.


There are many different ways a person can unjustly benefit from someone else’s property. These include:

  • Undue influence and/or lack of capacity. A caregiver may use his or her influence over an elderly charge to gain money or property. Sometimes, a caregiver may bully or persuade a person into giving him or her gifts or money. In such cases, the family and/or rightful heirs may contest the will or petition for the return of this property.

  • Fraud. The defendant may have taken possession of property as a result of criminal deception, either implied or explicit.

  • Breach of fiduciary duty by a trustee. Most commonly, a constructive trust is necessary to ensure a traditional trust benefits the right person. In these cases, the trustee typically misuses the property in trust, often for his or her own benefit. If so, the rightful beneficiary can recover the property through a constructive trust.

Whether or not the court will order a constructive trust depends on whether or not the defendant actually owns property. For example, a caregiver may exert undue influence in order to wrongfully obtain a sum of money. If the caregiver purchases property with that money, such as a home, you may be able to take possession of that home through a constructive trust. If the caregiver uses the money on an expensive vacation, a constructive trust will likely not be beneficial. 

However, you may have other options for recovery.


If you believe a constructive trust may help you recover your rightful property, contact probate lawyer Charles Triay. He has practiced estate and trust law in California for over 30 years, and specializes in these kinds of cases. He can use this experience to assist you in gaining remedy for your wrongs. In addition, the Triay Law Office allows clients to choose between paying attorney fees on a contingent or hourly basis.

Contact our Oakland law firm at 510-463-3170 to schedule a consultation today.

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  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.​

  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.​

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.


About Triay Law Office

Probate litigation attorney Charles Triay has specialized in California probate litigation matters for over 30 years.

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4 Orinda Way Suite 200-Dorinda, CA 94563


4 Orinda Way Suite 200-D

Orinda, CA 94563

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