Hi. This is Marc Herbert from Herbert Law Office with the Question of the Week. This week I was asked, can we contest the executor or successor trustee in the estate planning documents? And the answer is yes, you can do that. Actually, two different ways. But you have to be very careful. And I always stress that with people. The first way to challenge or contest an executor or trustee is to challenge the document that gives them that authority.
So if you have evidence that the person who wrote the will or trust was incompetent was acting under duress or undue influence, maybe the document itself is even forged, then you can file a contest with the court to try to get that document to be invalidated. But I warn people all the time, you must have admissible evidence, not just a belief, not just a guess, not just speculation.
But if you have a letter from the doctor, if you have another sample of their handwriting, maybe something concrete in terms of evidence that will really help your will contest or your trust contents if you choose to challenge the document. Now, many wills and trusts have what’s called a no contest clause, which disinherit someone if they attack the document in court.
So again, you always have to be very, very careful. And for that part of contesting an executor or a trustee, it’s usually virtually impossible to avoid probate court. And as we’ve talked about many times, probate court is very expensive, very time consuming, very stressful. And really, you lose a lot of control by filing in court because a judge who doesn’t know you is going to look at the documents, look at the evidence and make a ruling that, again, you know, is beyond your control to a certain extent.
So sometimes the better way to contest an executor or a trustee is to challenge that person’s performance of the terms of those documents. Now, everybody talks about the authority and the discretion of the executor and the trustee. And that’s all very true and very important. But executors and trustees also have a lot of obligations under California law. So if the person who is chosen to be the executor or trustee fails to keep those obligations or violates them completely, then you can successfully contest that person.
So you are entitled as an error beneficiary to a copy of the document within 120 days of the person who passed away. That’s an absolute right. And lots of executors and trustees don’t know that as an error beneficiary. You’re also entitled to an annual accounting for all the assets and all the transactions performed by the executor or trustee.
So if those people violate those rights, you can file a petition in court to try to force an accounting or to remove that person as executor or trustee if necessary. Now, for this type of a contest, you may be able to resolve things outside of court, which again, saves you all that time, saves you all that money, saves you all that stress, and does give you a lot of control over the situation as we try to negotiate a settlement and hopefully get you your full inheritance more quickly.
At Herbert law office, we offer a free consultation to discuss your specific situation, your specific rights and your specific options to receive your inheritance more quickly and also fully. If you’re interested in scheduling a consultation, just give us a call at 6612739007. Thanks a lot. We’ll talk to you soon.
