No Contest Clauses: When They Actually Bite
A California no contest clause is far narrower than it reads. Probate Code section 21311 enforces one only against a direct contest brought without probable cause, and against two specific other filings where the clause expressly says so. A contest with probable cause is protected.
This clause stops more valid claims than any argument on the merits. Someone reads a paragraph threatening to disinherit them for asking questions, and they stop asking. In California that paragraph is enforceable in narrower circumstances than almost anyone expects.
What the statute actually permits
Probate Code section 21311 limits no contest clauses to three targets. The first is a direct contest brought without probable cause. The second is a pleading challenging a transfer on the ground that the property was not the transferor’s at the time — and only where the clause expressly so provides. The third is a creditor’s claim, or an action based on one, again only where the clause expressly so provides. Everything else falls outside. The probable cause standard is the protection that matters most in practice, and the statute defines it: probable cause exists where, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery. That threshold is measured at filing, on what was then known, and it contemplates that the full picture emerges later in discovery.
Sources: Probate Code s.21311 - When a no contest clause is enforceable · Verified 2026-08-14.
What the clause does not reach
| Action | Caught by a no contest clause? |
|---|---|
| Asking the trustee for a copy of the trust | No — that is your right, not a contest |
| Petitioning to compel an accounting | Generally no — it does not challenge the instrument |
| Seeking to remove a trustee for breach | Generally no — it challenges conduct, not validity |
| Contesting the trust with probable cause | No — expressly protected by §21311(b) |
| Contesting the trust with no basis at all | Yes — this is what the clause is for |
The distinction that surprises people most is the second and third rows. A great many disputes are about the trustee’s conduct rather than the document’s validity, and a clause aimed at contests does not generally reach them.
What to do if you have been shown the clause
Being pointed at a no contest clause by the person who benefits from your silence is not legal advice; it is a negotiating position. The question worth answering is narrow and answerable: do the facts you know today meet the probable cause standard? That is a question for an attorney reading your documents, and it is usually resolvable quickly.
Related: contesting a trust, contesting a will, disinheritance and omitted heirs.
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How contingency fees work in California
A contingency fee means the attorney is paid from what is recovered rather than by the hour, so a beneficiary who cannot fund litigation out of pocket can still bring a claim. California regulates these agreements closely. Under Business and Professions Code section 6147, the agreement must be in writing and the attorney must give the client a duplicate copy, signed by both, when the contract is made. It must state the agreed contingency rate; how disbursements and costs incurred in prosecuting or settling the claim will affect that fee; and to what extent the client could be required to pay for related matters. Unless the matter falls under section 6146, the agreement must also state that the fee is not set by law and is negotiable. These are not formalities: failure to comply with any provision of section 6147 makes the agreement voidable at the client’s option, leaving the attorney entitled only to a reasonable fee.
Sources: Business and Professions Code s.6147 - Contingency fee contracts · Verified 2026-08-03.
Not every matter suits a contingency arrangement, and the firm does not take every case on one. Whether yours qualifies depends on the facts, the likely recovery, and the assets actually available to satisfy a judgment. Ask when you call.
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