Estates, heirs and beneficiaries regularly utilize contingency fees in prosecuting probate litigation and trust litigation matters. How can heirs and beneficiaries of an estate fight back when their rights have been violated? Often family members seek out the Sacramento probate lawyers at Hackard Law to seek advice on the recovery of property that has been taken from trust beneficiaries through undue influence or otherwise.
Sacramento probate and estate lawyers are often after the fact witnesses to what brewed an estate dispute. Once the wrong is identified probate litigators can then work to fashion a remedy to the wrong.
In cases of undue influence or even outright estate fraud, family members often sense that there is something amiss even before facts emerge and the full size of the wrongdoing is known. Visits, telephone calls and access to the perilously ill family member are either entirely prevented or unreasonably limited. The ill family member is vulnerable, and his loved ones are troubled greatly by their inability to gain visitation. When the ailing family member passes away, questions as to his or her estate are met by silence - or delay - or a flimsy justification for the absence of information.
Family members often delay their decision to do something about estate wrongdoing. They don't want to be greedy, and yet in their hearts they know that greed is not the point. The point is that someone is trying to take his or her family's estate - be it someone who married into the family, a caretaker, or a sibling.
The very nature of an estate grab is the wrongdoer's retention of money and assets that either do not belong or should not belong to them. The heirs feel anger. The grabber's acts add insult to injury - think of it as injustice multiplied - and only worsens the emotional pain. What can be done?
Wronged estate heirs and abused trust beneficiaries face the challenge of meeting and paying the real costs of court access. Filing fees, deposition expenses, expert witness retainers, and medical record acquisition costs all add up. Such financial outlays are large even before the hourly rates charged by lawyers experienced in estate litigation are accounted for. The simple truth is that trust litigation is expensive, and probate litigators are expensive.
Once the decision to pursue the wrongdoer is made, clients in an estate case often have a choice between hourly fees and contingency fees. Most individuals do not have the financial resources to cover the necessary costs and attorneys' fees required in estate litigation. Contingency fees are often available for those who cannot otherwise afford to pursue probate litigation. A good litigator will evaluate the scale of the battle ahead: the nature and size of the case will influence the practicality of a contingency fee arrangement. The percentage of the contingency will vary, but most estate and abused beneficiary cases vary between 1/3 and 40% of the total recovery.
Contingency fees are an important element of our California legal system. Such fees enable individuals to have better access to the probate and civil courts. They also can be an effective antidote to the bully trustee or estate wrongdoer who knows that the wronged beneficiary does not have the funds to bring the wrongdoer to justice.
Contingency fee agreements may also be used where wronged heirs or beneficiaries want the executor or trustee to be removed. In addition, contingency fees can be helpful when recovering assets wrongfully taken by an executor or trustee. Both the attorney and the client in a contingency fee arrangement share the risk of the outcome of the case.
Estates may also hire a probate litigation attorney to pursue rights of the estate. Probate Code Section 10811 permits contingency fees in these cases where the agreement between the estate (through the executor or administrator) and the attorney is (1) written and complies with the requirements of Business and Professions Code Section 6147; (2) The contingency fee agreement is approved by the court following a Section 10812-noticed hearing; and (3) The Court determines the compensation provided in the contingency fee agreement is just and reasonable and the agreement is to the advantage of the estate and in the best interests of the persons who are interested in the estate.
Courts have the discretion to decide the justness and reasonableness of attorney's fees. Contingent fees of 40% are regularly approved. Moreover California has developed caselaw in the area of fee approvals. See Estate of Guerin (1961) 194 Cal. App.2d566, 575 [approving a 50% fee]. Contingent fees are particularly advantageous to estates as well as heirs and beneficiaries when the client has no money to compensate Sacramento probate attorneys for extraordinary services in determining the validity of Wills, Trusts, rightful owner of real property as well as the correct beneficiaries and heirs of Wills and Trusts.
Contingency fees are not appropriate in every case - but in the right case, they are an effective tool to counteract the information and asset freeze-out engineered by an estate wrongdoer.
Michael Hackard is a veteran attorney and recognized SuperLawyer with 40 years of experience in probate, trust and estate litigation. Contact Michael Hackard at Hackard Law or call him directly at 916-313-3031 to discuss your case and how we may represent your interests in probate courts throughout California.