Trust & Estate Litigation
When litigation concerning a trust, will, conservatorship or guardianship is unavoidable, our trust and estate litigation attorneys are there to protect you. We understand how emotionally exhausting litigation with other family members or fiduciaries can be. We can demystify the litigation process for you, explaining in clear terms what to expect, possibilities for resolution before trial and the risks and rewards of proceeding to trial.
In virtually all contested trust, probate, guardianship and conservatorship proceedings in California, the trier of fact is not a jury, but rather a judge or commissioner. The normal right to a jury trial in probate matters was eliminated in California decades ago, when it became clear to the Legislature that juries were deciding cases on what they believed was “fair” as opposed to carrying out the intent of the decedent as expressed in the trust or will.
Trust and estate litigation, also known as probate litigation, is a specialized area of litigation, governed by both the general rules of civil litigation and the Probate Code. The phases of probate litigation mirror those in general civil litigation, with pleadings (referred to in probate court as “petitions” and “objections”), discovery, motions, settlement discussions and trial. The rules of discovery and evidence are the same in probate litigation and general civil litigation. However, that is where most of the similarities end.
Unlike the general civil court, the probate court is a “protective court,” charged with the duty of protecting trust beneficiaries, heirs, conservatees and minors. In civil litigation, generally two warring sides – a plaintiff and defendant – present a controversy to the tier-of-fact (i.e, jury or judge) for determination. The court and jury rely on the parties to point out the weaknesses with the opposing party’s case and the strengths of their own case. The jury has no obligation and is, in fact, generally forbidden from doing any personal investigation concerning the facts.
By contrast, most cases before the probate court involve just one party – typically the fiduciary (i.e., the personal representative, trustee, guardian or conservator). In its function as the protector, the probate court has an independent duty to review the documentation submitted by the fiduciary and determine whether the requested relief is appropriate, even when no beneficiary or heir objects. Unlike a civil case, where the final judgment of the court is binding only on the parties participating in the litigation, the order of the probate court (with some exceptions) is binding on everyone, even those individuals who were never given actual notice of the proceeding.
Unlike most civil complaints and answers, pleadings in probate court cases must be “verified” by the client – which means signed by the client under penalty of perjury. This combination of factors: (1) the probate court’s role as protector,(2) the court’s ability to bind everyone by its decision, and (3) the obligation of the party to sign all pleadings under penalty of perjury- – make the accuracy of the probate pleadings significantly more important than the accuracy of civil pleadings, which the jury almost never sees. When it comes to probate pleadings, there is no “fudging” on the facts.
In general civil litigation, “notice” of the hearing is rarely an issue, since the plaintiff is the one initiating the action with a complaint and the defendant is the one personally served with the summons and complaint. Generally, it is a battle between these two parties only and no one else is entitled to notice. The opposite is the case in probate. The California Probate Code lays out detailed, complex rules covering who is entitled to notice. The right to notice is determined generally by a party’s relationship to the decedent. The Probate Code and the court use the fluid concept of “interested party” to cover those individuals, who do not fall into a obvious category of related persons, but who should be given notice because they could be economically impacted by the court’s decision. It is not uncommon for the probate judge to repeatedly have to continue a hearing because the general civil litigation attorney is unfamiliar with the probate rules concerning notice and fails to notify interested parties.
In the process of reviewing the court filings, the court’s reviewing attorney (referred to as the “probate attorney”) and the court’s paralegal (referred to as the “probate examiner”) prepare detailed notes, using a variety of abbreviations, to point out procedural problems with the filed documents. These “probate notes” can be accessed online and must be reviewed well in advance of each hearing. The “probate notes” often present a list of “defects” with the filed documents. If the defects are not cleared in advance of the hearing by a written supplement, again signed under penalty of perjury by the client, the hearing is either continued for a minimum of 30 days or the entire petition goes “off calendar.” When a petition goes “off calendar,” it must be re-filed. That means starting over.
The Superior Court often refers contested probate cases to mediation. The mediators are generally retired probate judges or skilled probate attorneys, who act as a neutral third party to assist the parties in reaching a resolution. In most cases, mediation works. It invariably requires compromise. Our trust and estate litigation attorneys recognize that, while it is difficult for a client to compromise when it comes to “principles,” compromise often results in all of the parties ending up with more money by reducing or eliminating the substantial legal fees that would be incurred by both sides if the case was taken all the way through trial.
When mediation is unproductive, our trust and estate attorneys get the case ready for trial, take depositions of the opposing parties and other key witnesses, complete the document production and other discovery, file any pretrial motions and try the case before the court. We walk the client through the entire process, explaining each stage. When it comes time for our client’s deposition to be taken, we sit with the client and prepare him or her well in advance for the questioning that is likely to take place. Whenever possible and throughout the litigation, we give the client reliable estimates of the legal fees to be incurred based on certain strategies and tactics.
When it comes to a fiduciary embezzling trust assets or committing financial elder abuse, we generally know the most efficient tactics for freezing assets, finding hidden assets and forcing the absconding fiduciary to turn over the assets. We have the experience to do most forensic accounting work in-house, often saving the clients tens of thousands of dollars in forensic accounting fees.
When beneficiaries are wrongfully challenging the actions of our fiduciary clients, we understand how to level the playing field. We know the tools of the trade, whether it is filing a Petition for Instructions – to insulate our client from liability before he or she acts – or filing a petition to enforce a No Contest Clause against a beneficiary who challenges the validity of the trust without probable cause.
As trust and estate litigation attorneys, we explain carefully to the client whether the attorney’s fees to be incurred by him or her in the litigation are payable directly from the trust or must be paid by the client/fiduciary personally. We let the client know up front what the risks are in terms of legal fees and court costs.
Because of our experience, we know the importance of giving the client accurate assessments of the client’s probability for success in the probate litigation, as well as worst case and best case scenarios. Although we have no crystal ball and cannot guarantee any result in litigation, we know what is at risk and when the client’s interests are best served by compromise or negotiation. We are not helping our client by giving him or her inflated evaluations of the merits of his or her case. What our client needs most is straight talk about the pros and cons of litigation from a rational voice who understands from experience most of the possible outcomes.