Glendale | Hackard Law | California Estate & Probate Litigation

Launching all Available Probate Challenges Through Effective Litigation

People can use many different legal tools to carry out their wishes through the probate process. Wills, trusts, powers of attorney, and other procedures can give legal effect to these wishes.

Unfortunately, these documents are sometimes executed as the result of fraud, duress, or coercion. In other cases, the executor or administrator of the estate does not properly carry out the wishes of the person who made a valid will (the “testator”). Still other cases result in an estate that does not access all assets held by the testator, thereby depriving beneficiaries of their fair shares of the estate assets. All of these problems present valid legal challenges that a beneficiary can raise in probate court.

Read on to learn more about the many ways in which a Glendale estate attorney can help you identify and launch effective challenges to the improper administration of an estate.

What Challenges Can I Make to a Will or Trust?

The most basic requirement of any will is that the person who made it properly executed it. The testator must have been of sound mind at the time of the document’s execution, understanding the nature of the document and the effect that it would have upon debts, assets, and other financial matters. A beneficiary—or potential beneficiary—can challenge the validity of a will with evidence that the testator was the victim of fraud, duress, or coercion, and that testator would not have made the will without such actions.

A potential beneficiary can also challenge a will that lacked valid procedural requirements. In California, these include having two individuals witness the testator’s signature and sign the will themselves. These witness cannot benefit from the will, and therefore have no financial interest in its terms. A valid California will can lack witnesses if its key provisions and signature are written in the testator’s own handwriting. This is known as a holographic will.

Potential beneficiaries can also contest an improperly formed trust. Again, potential beneficiaries can argue that the trust was formed as the result of fraud, duress, or coercion. They can also argue that the person who formed the trust (the “grantor”) did not understand the financial effects of the trust on his own affairs. That a grantor may still be alive at the time of the challenge can complicate this argument. Unlike a will, which potential beneficiaries must challenge after the testator’s death, potential beneficiaries can challenge a trust as soon as it takes effect. This can occur during the grantor’s lifetime. As a result, a challenger may need to question the competency of a person who is present in the courtroom. A skilled probate attorney will find the best methods of proving (or disproving) the competency of a grantor.

Of course, not all challenges require someone to challenge the validity of the entire will or trust. Other challenges are limited to a specific asset or liability within the estate. For example, creditors may have valid claims against an estate for the debts of the testator. Beneficiaries may agree that a will is valid, but have rights to undiscovered or hidden assets that the administrator has not yet brought into the estate. Life insurance benefits, jointly-held assets, and disputes about retirement accounts—such as a 401(k)s or IRAs—may also require the intervention of the probate court. A real estate asset within the estate may require division by a separate legal action (known as a “partition action”). In all of these cases, the challenger need not attack the validity of the will itself, but only need to bring the asset or debt at issue to the court for resolution.

Beneficiaries can also bring claims against the administrator of an estate, or trustee of a trust, for negligent or fraudulent actions. Administrators and trustees have fiduciary duties toward the estate or trust they manage. They are prohibited from engaging in self-dealing with the estate or from making fraudulent transfers from it. Failure to do so can result in removal from their position, as well as ordering them to repay the estate or trust for the losses caused by such fraudulent behavior.

A trustee or administrator may face liability for negligence. Some wills or trusts contain provisions that indemnify the administrator or trustee from liability for ordinary negligence. In such a case, the administrator or trustee may only face financial responsibility for gross negligence (such as fraud, or by committing another intentional crime). When such provisions are not contained in a will, a challenge can obligate the estate administrator to repay the estate for losses it sustains as a result of negligence. Negligence is determined by whether an administrator failed to act as a reasonably prudent executor in similar circumstances.

How Do I Know if I Have a Valid Legal Challenge?

It is difficult to know all of the potential challenges that might apply to a particular will, trust, power of attorney, or other probate document. It is also difficult to determine whether a potential challenge has a likely chance of success in litigation. Consult an experienced probate attorney to determine the best method of protecting your legal rights throughout the probate process.

Hackard Law focuses on probate litigation needs. Our skilled attorneys will start by reviewing your case to determine what—if any—challenges you have. Next, they will review all possible options for raising your challenge, to help you decide which method will best meet your needs.

Effective Litigation to Protect the Rights of Family Members, Friends, and Testators

With the advice of an experienced Glendale estate attorney, family members, friends, and other beneficiaries can determine whether they have a valid legal challenge to a will, trust, estate, or any other procedure in probate court. Call (213) 357-5200 today to schedule your free consultation with one of the attorneys at Hackard Law. We have decades of experience in effectively challenging improper estate planning documents through effective probate litigation.

Attorney Michael Hackard

Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]

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