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Contingency Fee Agreements | Probate and Trust Litigation

Contingency Fees Trust Probate Litigation.jpgDisinheritance is emotionally and financially troubling. It shatters long-held family expectations.

Decades-old estate plans are changed. The cause of the interference is easily suspected - and sometimes is crystal clear.

The interfering actor may be an errant caregiver, an addicted sibling or other undue influencer. Disinheritance is not an isolated event - even though it is often a product of isolation - the isolation of an elderly parent by a wrongdoer against children, grandchildren, friends and neighbors.

While some victims of wrongful disinheritance see it as a natural outgrowth of wrongful isolation, others are absolutely surprised. The disinheritance was not expected. The abused beneficiaries look around and wonder how they can pursue an estate case.

They've not done this before. They've never seen this before. We who litigate these estate and trust disinheritance cases see it dozens and dozens of times each year. These cases are a significant part of our litigation practice.

Potential clients pose similar questions.

  • Have you ever seen this before?
  • Do you litigate these cases?
  • Where are the lawsuits filed?
  • Who gets sued?
  • How do I pay to assert my rights when I don't have the money to fund the litigation?
  • What is your hourly rate?
  • Do you do contingency fees?
  • How do contingency fees work?

All of these questions need to be answered. As to the contingency fee question, a contingency fee is an attorney - client fee contract in which an attorney agrees to litigate your case without being paid until money is distributed from the defendant or the estate.

It is a matter of negotiation whether the client advances some, all or none of the costs.

Costs include filing fees, witness fees, subpoena costs, deposition fees, court reporter fees, mediator fees, jury fees and a host of other expenses that are a prelude to and part of a trial. Attorneys are paid for the costs that they have advanced at the point of distribution of assets.

My experience is that most California law firms pursuing estate and trust litigation will only accept hourly cases. I suppose that they've chosen to avoid the risk of contingency arrangements. This isn't unreasonable. Law firms expend huge amounts of time and expense in estate and trust litigation. It hurts when there is no recovery. Law firms that do take contingency fees generally charge between 33.33% and 40% of the recovery.

Recovery may occur by negotiation, mediation, mandatory settlement conference or trial. Contingency fees are often a method that allows a case to be brought that, otherwise unfunded, would have languished or barred because of strict timelines. California contingency fees are subject to California ethical and statutory guidelines that must be followed.

Contingency fee arrangements are made in a variety of circumstances. Cases of pure disinheritance are a regular circumstance. Executor or trustee removal petitions may be a part of a contingency fee arrangement. An unfettered executor or trustee doing bad acts can be a danger to inheritance rights. Estate or trust assets may be disappearing, unaccounted for or hidden.

It is a cautionary tale, but executors and trustees may utilize estate or trust assets to mount defenses against will or trust challenges. These defenses and expenses can be challenged but success is never assured. The burden on heirs and beneficiaries seems unbalanced. Challengers to wrongdoing must pay their own attorney's fees while those challenged use estate or trust assets. It seems like the challengers are paying twice - once for their own attorney and again for the defense attorney. This is the system.

While it might have exceptions as a practical matter, pretrial resolutions usually involve each side paying their own attorney's fees. Since some 97% of cases are resolved prior to trial this is a reality in estate and trust litigation.

Disinherited heirs and beneficiaries are wise to consider all of their options. If a contingency fee is part of your own consideration to pursue a case, we're happy to discuss your case with you. We litigate California estate, trust and elder financial abuse litigation in most of California's major urban probate and civil courts, including Los Angeles, Orange, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.

We focus on substantial cases where we think that we can make a significant difference and there is a wrongdoer who can be made financially accountable for their wrongdoing. If this is something that you'd like to talk to us about then call us at Hackard Law - (916) 313-3030.

We'll be happy to hear from you.

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