Law Office of Rodney W. Wickers


California Trust and Probate Litigation’s Can Be Challenging-Attorney’s Assistance Will Provide Clients with the Road Map and Support Needed for the Best Outcome to the Litigated Trust, Probate, Will and Estate Matters

On occasion, disputes arise regarding legal issues during the administration of a probate estate and during the administration of a trust. Those issues that arise sometimes result in additional litigation in the probate matter and trust litigation in the trust administration. Some of those issues are to remove the acting trustee, compel an accounting from the trustee, petition the court related to a breach of fiduciary duty, or a trustee who has a conflict of interest in a transaction may be ordered to return property, among many other issues.  We also assist trustees in defending their acts as trustee and work to achieve cooperation and transparency in the trust administration with the beneficiaries to avoid litigation and protect the trust assets for the benefit of the beneficiaries.  We work to resolve disputes and issues through meeting and conferring with the parties, direct mediation, alternative dispute resolution and less frequently in lawsuits and additional civil litigation including trials and appeals.

This office has handled countless estate cases. That experience drives us, when handling estate cases, toward creating settlement agreements that are consistent with the interests of the beneficiaries, the heirs, the estate, and certainly in the interests of the settlor, trustor and the decedent. We also work closely with trustees to assist them with whatever legal issues may arise.

We understand that family priorities involved in probate and trust litigation usually take precedence and can sometimes make litigation frustrating for family members. We seek to reach an agreement without litigation first, but litigation when necessary can be very helpful to achieve our client’s goals.  Both the father-daughter attorneys Rodney W. Wickers and, Christina M. Wickers handle cases from inception, through trial and up to the appellate court level.

The first hope is that the dispute can be avoided by the parties coming to an agreement on how to proceed.  When that is not an option, sometimes no contest clauses seem to be a deterrent to beneficiaries to contest what the Trustee has/is doing.  A Safe Harbor Petition can be filed to avoid such determination prior to filing the underlying Trust Petition.  The Courts have had recent changes in the enforcement of no contest clauses, which in part depends on when the trust instrument became irrevocable.  Under the current law, as of May 26, 2022, the no contest clause shall only be enforced in a direct contest brought without probable cause, challenges to property transfers if expressly barred in the no contest clause and filing or prosecution of creditor’s claims if expressly barred by the no-contest clause. It is important to obtain legal advice related to your case about the enforcement of such a clause in any trust matter.

The Attorney’s Can File an Action to Get A Will or Trust Can Set Aside by a Court Order

The most common grounds in a Probate Estate Action for setting aside or invalidating a will or trust in probate court, is that the testator, settlor or decedent, lacked capacity, was unduly influenced, the documents signature was induced by fraud, there was duress or menace or that the document was signed by mistake of fact.

The Attorneys In the Law Office Handle Elder Abuse Cases, Which Can Invalidate Wills & Trusts and other Documents, and Wrongful Transfers, including Financial Elder Abuse

The Attorneys In the Law Office Handle Elder Abuse Cases, Which Can Invalidate Wills & Trusts and other Documents, and Wrongful Transfers, including Financial Elder Abuse.  There are many remedies but must be brought within the statute of limitations.  For financial elder abuse, as of May 26, 2022, the statute of limitation is four years from the date of discovery.  An attorney should be contacted as soon as the elder abuse has been recognized as an issue.

Attorney’s Can Assist Clients in Obtaining A Copy of the Trust from the Trustee and Obtain an Accounting

The Attorney’s in this office assist client in obtaining trust documents as well as accountings from a reluctant Trustee.  Those can be handled either informally, through correspondence, called a demand letter or notice.  Where informal steps do not achieve the desired result, a Petition for an Accounting can be filed with the Court as well as a Petition for Breach of Fiduciary Duty.

Attorney’s Can Assist in Obtaining A Trustee’s Resignation or Petition to Remove the Trustee and Surcharge the Trustee for Wrongful Expenditures

The attorney’s in this law office can assist clients with obtaining a Trustee’s resignation.  Again, this can be done on an informal basis, should the Trustee agree to resign voluntarily after information is brought to the Trustee’s attention.  Where those efforts are not met with a resignation, the attorney’s in this office file a Petition for Removal and a request for accountings, and surcharge among other causes of action.