Estate, Trust & Probate Litigation is at times the legal equivalent of Search, Rescue and Recovery Operations. Clients often present questions to us that we may only answer after a further search. Such searches include informal and formal discovery of the crucial details of an estate case. While formal discovery may only commence after the filing of a lawsuit - whether in probate or civil court - informal discovery may start at our first meeting and be gleaned from a variety of sources. One of the key ways we protect clients and bring wrongdoers to justice is CA Probate Code 17200, which gives a litigator a clearer picture of the trust and its assets.
Questions in estate, trust & probate litigation come down to classic journalism inquiries: Who? What? Where? When? Why? How?
Who? In trusts, the "who" question involves identification of a trust's trustor (settlor, maker), trustee (including successor trustees) and beneficiaries (including contingent beneficiaries. And, who can help wronged heirs or beneficiaries in protecting their interests?
What? The "what" question in trust matters can encompass quite a bit. What is in the trust? What is outside the trust? What has been taken from the trust? What disclosure is the trustee making to beneficiaries? What money is the trustee taking from the trust? What amendments are there to the trust? What influenced a trustor, settlor or maker to change his trust? What beneficiary had undue influence in the making of the trust? What are the plans for the distribution of the trust? And finally, what do we do now?
Where? Where are the assets of the trust located? Where are the beneficiaries of the trust? Where are the actual trust documents? Where is the trustee located? Where are the medical records of the trustor? Where did the trustor go to have his or her trust amended? If there is a challenge to the trust, where will it be filed?
When? When was the trust made? When was an amendment made? When were the first indications of the trustor's vulnerability to undue influence or elder financial abuse? When was the first diagnosis of dementia? When was the trustor's money transferred? When was the trustor's house transferred? When did you first learn that something just didn't seem right? When did you know that something was wrong?
Why? Why did the wrongdoing occur? Why was the maker of the trust vulnerable to undue influence? Why didn't someone act earlier? Why is someone afraid to act now?
This is only a sampling of who, what, where, when, why and how. Each case has its own questions, its own timelines and its own participants. That's why often the first order of business is the search.
A key statute in this search effort is California Probate Code 17200. A trustee or beneficiary of a trust may file a 17200 petition with the probate court to determine the existence of a trust or address a trust's internal affairs. The statute is broad - there are 23 identified matters on the list for grounds of the petition. Even at that - the list is not exclusive and is not intended to preclude a petition for any other purpose that can be characterized as an internal affair of the trust.
Search components are determined by the nature of the legal terrain over which the search is to be conducted. In estate, trust and probate cases, there are several types of terrain - some common, others more rare and some more treacherous than others.
Once we know what we're looking for with the help of tools like Probate Code 17200, we can make the rescue. The rescue may involve the suspension of powers of a trustee, the removal of a trustee, the surcharge of a trustee and other financial penalties available because of a trustee's wrongdoing.
Other rescue efforts really lead to the next point - recovery.
Recovery of misappropriated assets may be complex. You start with the journalist's questions again. Who are we representing? Who are we litigating against? What are we pursuing? What is the law with regard to the pursuit? Where are we filing the action(s)? Where is the respondent/defendant? Where are the assets? When do we need to act? When will our client's failure to act prejudice him? Why must we act quickly? Why must we file in one court and not another? Why do we need to seek interim orders? And finally, how are we going to go about this? How is our client going to engage us? How will an hourly fee arrangement work? How will a contingency fee agreement work? How could a combined hourly/contingency fee agreement work?
Search, rescue and recovery can be a fitting analogy for the economic realities of estate, trust and probate litigation. Probate litigators are engaged in all aspects of the process.
If you think that the estate or trust in which you have an interest needs a search, rescue and recovery operation, know that our litigation team at Hackard Law is experienced and passionate about protecting client interests as priority number one. We work in Superior Courts throughout California - from Los Angeles and Sacramento to the Bay Area and San Diego. You can call us at 916-313-3030. We look forward to speaking with you. Thank you.
Find us at:
10630 Mather Blvd.
Mather, CA 95655