California Estate Litigation AttorneysGive Yourself A Fighting Chance In Estate Litigation
Hackard Law’s Probate, Trust and Estate Litigation Practice group is a team of attorneys recognized for their experience and success as litigators in the field of California probate, trusts, and estates. We represent people and we remember it. Probate, trusts and estates issues involve people – people often stressed by the loss of a loved one and the pain of a family in dispute.
We’ve had clients ask us whether they “have a fighting chance” to prevail in their estate dispute. Our job is to give our clients a fighting chance. We do this in a variety of ways. Following are some of the ways.Request A Consultation
Many law firms involved in California trust and estate litigation assign these cases to attorneys who are fundamentally estate planners with limited or no experience handling major contested matters in the probate courts. Other firms rely on civil litigators with little or no experience in the fields of probate, trust and estate law. But you need a battle-ready litigation attorney who knows the ins and outs of complex estate cases – you want to have a “fighting chance” – where do you turn?
Hackard Law is unique: we offer seasoned trial attorneys with many years of experience in the probate courts and in-depth knowledge of the substantive law and unique procedures applicable to probate, trust and estate contests in California’s major urban areas. For that reason, we often represent individual fiduciaries and beneficiaries in large and significant disputes involving probate, trusts, and estates. Whether the dispute is large or small our clients deserve the same degree of respect and commitment to excellence.
Michael Hackard has represented high-net-worth families, individuals and businesses in California estate law over four decades of practice, earning Super Lawyer status, Martindale-Hubbell’s AV-Preeminent rating, and other awards through years of fighting for his clients. Our many accomplishments are due in part to the leadership and credibility we bring with us to court pleadings and court practice. We are successful because our team is committed to excellence and respect for our clients and their needs.
Thanks to our success in court, we have the credibility to obtain the most favorable settlements of disputes for our clients in mediation or even before litigation ensues. We also counsel our clients about litigation avoidance, and we can provide sophisticated advice that only comes from years of experience in probate, trust, and estate law in California’s major Superior Court venues. Let us fight for you – we know the battlefield, and we’re ready to engage.
Many Types of Legal Disputes
The Many Types of Legal Disputes Which Can Arise Over the Administration of an Estate
The administration of an estate can lead to many different types of disputes. Heirs may contend with one another over the disposition of property and funds. They may also find themselves at odds with an estate administrator over the same issues. Similarly, the beneficiaries of a trust may find themselves disagreeing with a trustee or each other over the disbursement of trust assets.
Common areas of contention in estate administration include:
- Second marriages and subsequent families. Because first, second, and subsequent marriages create families whose only relation to one another is the person who died, these groups of people are especially likely to disagree over the disposition of an estate. These disputes can cover everything from selling real estate to omitting stepchildren as heirs and the handling of the decedent’s remains.
- Subsequent revisions to estate planning documents. The person who makes the will (the “testator”) can amend or revoke it until the time the testator dies. The person who establishes a trust (the “grantor”) can also revoke and amend certain trusts. These later documents can lead to questions about the order in which the changes occurred. If, for example, a will has multiple codicils (or amendments) with conflicting provisions, the one made last will generally control the estate. This can also raise questions about the circumstances in which a codicil was made, or a will or trust was revoked. If the change was not done under the testator or grantor’s own free will, beneficiaries could challenge it in court.
- The office of executor or trustee. Also called an estate administrator, the executor is the person the court appoints to resolve the assets and liabilities of the estate. (In circumstances where the decedent also had legal claims, such as a personal injury lawsuit, this person may also function as a personal representative.) Because this person is granted a wide range of authority over the estate, the role can breed resentment among family members and other heirs. If the executor is not able to remain impartial in the administration of the estate, the heirs must petition the court to reprimand or remove the executor. Similar difficulties can arise in the administration of a trust. There, beneficiaries may have to petition the court to remove the trustee and replace them with an impartial trust administrator.
- Duress, coercion, and undue influence. These defenses refer to situations in which the actions of a third party overcome a person’s will. When these actions cause a person to change the disposition of property (such as in a will, trust, or other estate planning documents), the potential beneficiaries can challenge the validity of the document in the probate court. Particularly when only one family member has served as a caregiver, other family members may question the influence exerted by the caregiver over the person who made a will or trust.
The Time and Expense of Litigation Probate Claims
All of these scenarios present important legal issues that can damage the property rights of an heir or beneficiary. More importantly, they also raise the possibility that an executor or trustee is not honoring the wishes of the person who initially formed the trust or will. Heirs, therefore, must hold executors accountable (and beneficiaries must hold trustees accountable) for meeting their legal obligations.
Unfortunately, this process can consume a lot of time and money. The formal litigation process begins with a petition to the probate court. The parties must then engage in a discovery process to examine the evidence that supports each side’s claims. This often consists of presenting the estate planning documents, the testimony of the witnesses to these documents, and occasionally photographic or videographic evidence of the decedent’s mental state at the time a will was made. (If they are available, trust grantors may testify about their own mental status.) After completing the discovery process, the parties will attempt to negotiate a settlement. If they cannot, they will incur the time and expense of a trial. The court will then decide the issue for them.
In Terrorem Provisions That Violate Public Policy
An early question from a prospective client is whether they will be disinherited by engaging in a Will or Trust dispute. Both Wills and Trusts often include In Terrorem clauses that provide that, where a beneficiary under a testamentary instrument unsuccessfully challenges the instrument’s validity, the beneficiary will forfeit any interests obtained under the instrument. Testators include In Terrorem clauses in their Wills and Trusts in order to stop estate beneficiaries from taking action that doesn’t match the testators’ wishes, as expressed in their testamentary instruments. In California In Terrorem clauses are narrowly construed, and certain In Terrorem provisions are violative of public policy. Moreover, the California Legislature enacted important changes to the Probate Code removing most of the “terror” from In Terrorem. Basically, if the contestant had probable cause to contest the Will or Trust, the no-contest clause is ineffective.
California Probate Code Section 21311(b) states that “probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.”
Hackard Law takes the time and effort to discuss our clients’ concerns as to the existence of probable cause. What we have seen in the development of the law is that as long as the challenge is not invalid on its face or frivolous from the view of a reasonable person, the In Terrorem clause will not be enforced against the contestant.
With this in mind we note that the often-litigated claims we manage include:
- Financial Abuse of the Elderly. Hackard Law frequently prosecutes wrongdoers who have taken or hid the assets of elderly persons and their estates. Fraud on the elderly is a modern virus easily spread by inaction or inattention. We value the opportunity to do justice for the aggrieved elderly and their families.
- Beneficiary Litigation.Hackard Law often protects the rights of beneficiaries of estates, trusts, and insurance policies. Other beneficiaries or unscrupulous estate fiduciaries might target those who are to receive the benefits of an estate. Seeking out legal guidance early is often appropriate.
- Will Contests.We vigorously prosecute Will Contests, including petitions for revocation, interpretation and validity. These disputes result from fraud, lack of testamentary capacity or undue influence. Unequal estate shares between siblings also leads to disputes, especially when the inequality is the result of undue influence by one sibling against others. Exclusion from a Will or Trust is also a typical catalyst for a dispute. Some Will Contests simply focus on the interpretation of testamentary documents.
- Trust Contests.Hackard Law prosecutes and defends Trust Contests, including petitions to determine and enforce the rights and obligations of beneficiaries and trustees. Trust Contests, like Will Contests, often involve testamentary capacity and undue influence issues. Petitions for accounting and resignation, replacement and removal of Trustees are part and parcel of Trust Contests.
- Fiduciary Duty Litigation.Hackard Law manages issues that arise from conflicts of interest, self-dealing, beneficiary bias and actions cloaked in secrecy. Fiduciary litigation may also include investment malpractice actions.
- Discovery and Recovery of Hidden Assets.Disputed estate matters often include secret or open transfers of assets both before and after the death of the decedent.
- Creditors Claims.Claims against the estate can be real and a necessity for legitimate recovery. Conversely some wrongdoers will make false claims into an estate – false claims that must be defended.
- Life Insurance, Jointly Held Assets, 401k and IRA disputes.Disputes regarding ownership of life insurance, jointly held assets, 401k and IRA assets are often offshoots from Will Contests and Trusts Contests. Life Insurance, Jointly Held Assets, 401k and IRA disputes are often subject to a different set of rules than Will Contests and Trusts Contests. Here again experience counts.
- Power of Attorney Issues.Estates can often be looted by the wrongful use of powers of attorney prior to the decedent’s death. These cases present particular problems of discovery. Problems that are not impossible to resolve – but still serious.
- Fraudulent Transfer.Hackard Law regularly prosecutes fraudulent transfer cases. There are often instances where a caregiver, relative or some other individual has perpetrated undue influence and taken property. In these cases we may pursue whoever took the property directly as well as who received it from the wrongdoer.
- Real Estate Partition Actions.The heirs of an estate may inherit real property that may be owned with other individual(s). If one or more of the owners desire to sell while some don’t, there may be the need to initiate a court order sale of the asset. California law has particular rules that apply when there is a Partition action between the holder of a life estate and the owners of the remainder interest.
Our litigation experience teaches us that contested estates usually last from six months to two years. There is generally a lot to lose in contested estates and the desire to fight may wane with expense and time. Timing also depends on complexity, asset size and type, number of parties, discovery and whether mediation is useful. Mediated disputes are often resolved. Parties often say that they want to go through a trial, but most cases in California settle on the eve of trial or much earlier.
Fighting smart is just as important as fighting hard. Expensive litigation can be avoided in those circumstances where the parties and their attorneys reasonably approach the issues and weigh the costs and benefits of litigating. Sometimes estate disputes are resolved quite early, and people go on with their lives. Other times a family feud lessens the chance of resolving issues early on.
Hackard Law often undertakes estate dispute cases on a contingency fee basis. Contact us for options regarding contingency fees and other alternative fee arrangements. In many cases Hackard Law’s willingness to prosecute or defend a case on a contingency fee basis provides an heir or beneficiary “a fighting chance in trust and estate litigation.”
FIDUCIARY DUTY LITIGATION
ESTATE AND TRUST MEDIATION
OUT OF STATE CLIENTS
LACK OF TESTAMENTARY CAPACITY