Do you know what your options are in California Probate or Civil Superior Courts if you have been cut out of a family Will or Trust? Whether the Will or Trust in question is in Sacramento, San Mateo or Santa Rosa, exploring your options is a critical part of decision-making. In probate, estate and trust litigation the "ready, shoot, aim" approach is not particularly effective. With this in mind here are five things to remember.
I'm appreciate the opportunity to talk to many people about inheritance, disinheritance, Will Contests, delayed and denied distributions, Executor wrongdoing, Trustee misconduct and dozens of other estate related subjects that regularly arise. My clients and prospective clients have heard me ask "how much is at stake?"
- The grief, anger and sense of betrayal that can accompany an estate dispute can blind the parties to the particulars of damages. No matter how much anger the loss of Uncle Louie's horse blanket engenders - it is still only a horse blanket and probably not worth more than a few dollars.
- What was the estate worth? This is sometimes incredibly easy to answer -"There was a $50,000 bank account." It cannot often be not so easy - "Well there's the duplex in Arcata, the ranch in Sonoma, the house in East Sacramento, the bank account at Wells Fargo, the IRA at Golden One and the stock at Schwab. And, don't forget the life insurance policies, the bonds in the Tahoe safe deposit box and the time shares in Cuernavaca." You get the idea that this might take some time.
- In any event there are lots of ways to prove damages and lots of ways to be damaged. This is something that litigation counsel will look at and develop.
2) Time is of the Essence
- Settlements are usually made after a lawsuit - not before. That said experienced counsel on opposites sides of a dispute might explore settlement early - knowing the costs and burdens of litigation.
- The law does not reward those who delay seeking their rights.
- There are a number of very restrictive time limits for filing Will and Trust litigation matters. If you've got an idea that your case may be disputed, seek counsel - it's that simple.
3) Do Your Homework
- I ask clients to help me prepare a timeline of the facts of the case.
- We also need to know what the current status of the case is. Did the Executor sell the assets and move to Ecuador? Is he still in town and enjoying his new Cadillac?
- Is there a probate pending? Is a Trust administration pending?
4) Make a Plan
- Remember the old adage that "he who fails to plan, plans to fail."
- Hire an experienced California estate litigation lawyer to assist you.
- Remember that an internet search does not make you an expert. The probate litigator probably knows quite a lot more than you could know by a four hour Google internet search.
- Identify the steps in your plan.
- Figure out how the costs of estate litigation are going to be paid. Hourly? Contingency Fee? Combination of reduced hourly with a contingency fee?
5) Do You Want a Jury Trial?
- There are special rules with regard to the availability of jury trials in probate and estate matters.
- We often file estate related matters in the California Superior Court for civil matters. We like to reserve the right to a jury trial. That said, there are a number of matters that by law belong and stay in the probate division of the Superior Court - a place where matters are tried by a Judge and not a jury.
Do you want to talk about your case? Call us at 916 313-3030.