How to Choose a Probate or Trust Litigator

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Making the decision to hire an attorney to represent you and your interests in a probate or trust dispute, whether you are a fiduciary, a beneficiary, or an heir, is a major turning point in an estate that most people would prefer to avoid. While a smooth drama-free administration is ideal, you do not always have control over that, or the people involved. Sometimes, retaining a good attorney is the only way to protect the rights of you, the estate, or its beneficiaries.

To help you build a base of understanding, let's look at the Trust and Probate process, when litigation is necessary or advised, and how to select the best litigator for your needs.

Overview of the Probate Process

After a person dies (the decedent), unless they have a Trust or transfer-on-death planning in place, the person's estate will have to go through "Probate" in the Probate Court. The person in charge of the Trust or Probate estate (i.e., trustee, executor, administrator) is called a "fiduciary." Probate is the legal process necessary to transfer or inherit property, as well as payment of the decedent's liabilities, after the decedent passes away. Probate determines who the decedent's rightful heirs are, whether by Will (in cases where the decedent has a Will) or the heirs-at-law (in cases where there is no Will). The Probate process generally takes about a year or more to complete. If you need to go to court, this is commonly called "going through probate." In order for a party to start the probate process, they must file a petition along with other paperwork with the court.

Trusts are typically implemented in order to avoid the courtroom Probate process. In cases where the decedent died with a Trust, going to court generally is not necessary, although a trustee (or beneficiary) is strongly encouraged to retain counsel to advise them on the administration process and their rights along the way.

What is Probate and Trust Litigation?

Most Probate and Trust administrations do not involve litigation, meaning there are no disputes that cannot be resolved informally. Litigation is the process of going to court to resolve disputes that arise during administration. Such disputes generally involve: Trust/Will Contests, accounting issues, property rights, beneficiary rights, creditor claims, breaches of fiduciary duty, conversion of assets, and financial elder abuse. Probate and Trust litigation begins when someone files an action in the Probate Court seeking relief against the estate or against a person involved in the estate, typically regarding one of the above disputes.

Probate and Trust litigation typically occurs in an emotionally-charged environment because these types of disputes typically involve siblings, children, grandchildren, or other family members with a long history of dynamics that tend to surface when inheritance is involved, such as conflicts over distribution of estate assets, control of family businesses, who gets real estate, etc. A good litigator will attempt to resolve disagreements through informal negotiation or mediation before going to court in order to avoid costly litigation and court trials. However, informal resolution only works when all parties have a desire to participate; in other cases, going to court may be the best option. Even still, negotiations may continue throughout the litigation process.

When is Litigation Necessary?

Common reasons for a person to initiate Trust or Probate litigation include:

  • To contest the validity of a Will or Trust.
  • To claim financial elder abuse or conversion of property against another
  • To reclaim property that belongs to the estate
  • To remove/appoint a trustee or executor/administrator
  • To request the court to order the trustee or executor/administrator to perform a certain act
  • To request the court to order the trustee or executor/administrator to provide an account of their activities
  • To enforce the rights of the beneficiary or heir.

For a more detailed discussion of what Trust litigation involves, which could involve a broad range of trustee, beneficiary, and creditor issues, please see our article "When is Litigation Necessary in Trust Disputes."

How to Choose a Litigator

Here are several criteria to consider in hiring a Trust or Probate litigator:

  • Experience - Your litigator should bring to the table extensive experience in handling similar matters. Probate law can be extremely complex and has its own set of rules, processes, and procedures that differ from every other type of civil litigation. Your attorney should understand every aspect of these and provide skilled guidance to you throughout the process. In addition to knowledge of California Trust & Probate Law, a good litigator should also be familiar with the nuances of their local Probate courts and Probate judges, who often have their own set of internal rules and idiosyncrasies that only an experienced Trust and Probate litigator can appreciate.
  • Focus on litigation - Some Trust and Probate lawyers focus solely on litigation, while others focus solely on the administrative (transactional) side; some do both You may find that an attorney who does both is more adept in the early stages of a dispute, which enables a higher chance of early resolution (i.e., negotiations and possibly mediation). However, once the matter turns into a court filing (litigation), it is usually more effective to hire a full-time litigator.
  • Communication - Does the litigator communicate clearly with you, in terminology that you understand? Do you feel comfortable and at-ease?
  • References - While a lawyer is not permitted to divulge specifics about prior cases and clients due to attorney-client confidentiality, you can check for client reviews, Google ratings, and Yelp reviews. You can also ask other lawyers their opinion of a lawyer you are thinking of hiring for your case.
  • Fee structure - Ask the lawyer about their fee structure and estimated costs for your case. While California has a statute for typical probate matters that sets the attorney's fee based on a percentage of the gross value of the Probate estate, Probate litigation is generally billed at the lawyer's hourly rate, as is Trust administration and Trust litigation.

Decades of Probate &Trust Litigation Expertise

Our attorneys not only have the expertise and experience to handle your Probate or Trust matter skillfully and efficiently, we also care about our cases and clients. Please contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.

About the author:

Noah B. Herbold, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). His primary focus is assisting clients with litigated matters such as: Trust Contests, Breach of Trust, Fiduciary Appointment and/or Removal, Asset Ownership, Beneficiary Rights, Determination of Heirship, Elder Financial Abuse, Property Disputes, and Conservatorships. Contact Noah at noah@ocestateplanning.net
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