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Contest a Trust or Trust Amendment


Oakland And Bay Area Trust Litigation Attorney Explains

One of the benefits of establishing a revocable living trust is that the grantor retains the power to alter or annul the trust at any time. Additionally, although the process is often more difficult, it is possible to amend or modify even an irrevocable living trust. However, in some circumstances, the grantor may be coerced or influenced to make trust amendments that do not reflect his or her true wishes. You may be unaware that your loved one amended the trust of which you are a beneficiary until after his or her death. Therefore, sometimes it may be necessary for beneficiaries to contest a trust amendment. Although such a contest is possible, it is a complex process requiring the assistance of an experienced trust litigation attorney.

Our California Living Trust Lawyer

At the Triay Law Office, founder and attorney Charles Triay focuses his practice exclusively on probate and trust litigation. He has over 30 years of experience with California’s complex probate laws and estate and trust litigation. He also has a specialist certification in estate, probate, and trust law. If you believe that you have reason to contest a trust amendment that affects you as a beneficiary, then contact us today for more information.

When Can I Amend a Trust?

In California, the ability of the grantor to amend a trust depends on the type of trust in question as well as the terms of that trust. An irrevocable living trust allows a grantor to move certain assets out of his or her estate during his or her lifetime, and usually cannot be amended.

Irrevocable Living Trust

However, irrevocable trusts can be amended in circumstances where the grantor and beneficiaries all agree. Additionally, the beneficiaries may be able to petition the probate court to modify certain terms of an irrevocable trust after the grantor’s death.

Revocable Living Trust

Alternatively, the grantor often can modify a revocable living trust. Amending a revocable trust usually requires additional paperwork, but can be accomplished by strikeouts and handwritten additions to the original document. Whether the amendment is by a separate document, of changes on the original trust document, it requires a date and signature. If the changes are significant, then a “restatement” of the trust, a complete re-write, may be necessary.

Reasons for Amending a Living Trust in California

Some of the most common reasons for trust amendments or restatements are:

  • Addition of a beneficiary or updating personal information. A grantor may add beneficiaries after a marriage, birth or other circumstance.
  • Exclusion of a beneficiary. An amendment that removes a beneficiary or beneficiaries is a common issue that may lead to litigation.
  • Changing the distribution of assets. Circumstances change, so the grantor may need to update which beneficiaries receive which assets.
  • Changing the successor trustee. In some cases, the grantor may wish to name a different trustee.
  • Addition, revocation or alteration of the trust provisions. Any change to the trust parameters requires an amendment. For example, the grantor may wish to remove restrictions that allow beneficiaries to receive assets only after reaching a certain age.

What Are Grounds for Contesting a Trust Amendment?

Can you contest a trust? In some cases, the trust beneficiaries may wish to contest a trust amendment after the death of a grantor. Some common grounds to contest trust amendments include:

  • Incompetence. Depending on the circumstances, you may be able to argue that the grantor was not of sound mind when amending the trust. This may apply in situations involving elderly or ill trust grantors.
  • Undue influence. Sometimes, a caregiver or other individual may pressure your loved one into amending a trust to that person’s benefit. If so, then you may be able to contest the trust on the grounds of undue influence.
  • Defective amendment documents. California trust law is complex; sometimes, a grantor may amend a revocable trust only according to the methods laid out in the original trust document. Therefore, you may be able to challenge the validity of an amendment on these grounds. However, due to the complicated nature of this kind of trust contest, always consult with a trust litigation lawyer about your individual circumstances.

Need Help? Contact Our Attorneys to Learn How to Contest a Trust Amendment

If you discovered that a loved one’s trust was amended or have concerns about a restated trust, then contact Triay Law Office today. Our trust litigation attorneys can advise you on your unique circumstances and explain how California trust law may apply. We have been handling complex trust litigation in Oakland and the Bay Area for over 30 years. If you have legitimate grounds to contest a trust amendment, then we can help. 

Call (510) 330-2203 or contact us online to schedule an appointment with our trust litigation attorneys in California.

FAQ Learn More About Probate Litigation

  • 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.