Probate Litigation Attorney in Pasadena
Probate litigation involves a lawsuit. These lawsuits are normally filed after the death of a loved one. One of the most common types of Probate Litigation involves beneficiaries challenging a will or trust. These kinds of cases are often referred to as “will or trust contests.” Those types of cases contest the validity of a particular document.
Probate litigation can also involve challenges to an inheritance (or arguing that someone omitted should have received an inheritance). Beneficiaries commonly file suits alleging that they were improperly omitted from a will or a trust, did not receive their fair share because of duress or undue influence or were treated unlawfully. The most common beneficiaries are spouses, children, other family members, friends, and charitable organizations. As detailed below, three general types of disputes constitute probate litigation or will and trust contests.
Probate disputes are becoming more common as hundreds of billions of dollars of wealth are being transferred between generations. With so much money at stake, and given the emotional nature of any dispute involving family members, beneficiaries, and trustees, it is more important than ever to work with experienced probate litigation lawyers.
For more than 25 years, KJMLAW Partners has represented clients in a wide range of California probate disputes.
Cases Involving the Existence of a Will
The first kind of will contest involves disputes about whether a valid will exists. This is more likely to happen when someone writes out a will by hand (sometimes referred to as a Holographic will). Likewise, there may be issues about whether the legal requirements that make a document a valid, enforceable will were followed. The most common issue here is whether the will was properly witnessed. These and other disputes go to the issue of whether there is a document that the court can enforce as a will.
What Happens if There is No Will?
If someone dies without a will or a valid will, the courts rely on the state’s statutes where we know this takes place. Usually, where the person died and lived determines how to distribute the assets and the property of the deceased. When someone doesn’t have a will, the technical term is that you die intestate. The probate court then follows the law of Intestate Succession to determine who gets what.
In California, the laws of intestate succession are set forth in Probate Code sections 6400-6455. While the details of the intense succession laws are intricate, the following basic principles apply:
- Surviving spouses are given priority but do not inherit everything. Under California Probate Code section 6401, a surviving spouse’s intestate share is set as one-half of the community property that belongs to the spouse that passed away, as well as a percentage of the separate property based on what other relatives were left behind by the decedent.
- People not related by blood cannot be named heirs through intestate succession.
- If there is no surviving spouse and no other surviving blood relatives, the deceased spouse’s next of kin will receive your assets and property.
- Generally speaking, all children inherit equally. Children who are half siblings are treated as full siblings for the purpose of dividing property and assets. Children receive half or more of the assets when there is a surviving spouse. When there is no surviving spouse, the children inherit everything equally.
Because the intense succession laws are written to cover a wide array of situations, they are, by definition, not customized. Therefore, the primary benefit of writing your own will is that rather than the court relying on the basic formula that is given by the statute, you get to make a customized decision of who you want your assets to go to, including charitable organizations.
Disputes Involving the Validity of a Will
The second kind of case, which is also the most common form of a will contest, involves challenges to the validity of a will. In these cases, the existence of a will is generally not disputed. However, there are potential challenges to whether it is valid. In many cases, will contests involve an allegation by a beneficiary or someone who claims they should be a beneficiary that the will as written doesn’t match the true intent of the person who has passed away. Specifically, the person challenging the will often alleges that some kind of improper conduct or factor subverted the true intent of the deceased.
The three most common bases for challenging the validity of a will are Undue Influence, Duress, and Lack of Capacity. Each is described below.
In this situation, the person an elderly or dependent adult relies upon for such things as cooking, taking them to appointments, and keeping track of their money takes advantage of them by forcing them to sign a new will, making the caregiver or someone they choose a beneficiary.
An example of undue influence would be an only child’s parent passing away and that child learning that in his or her parent’s will, the majority of the estate is left to a caretaker. The child is devastated as the parent has been telling him or her that they would be the sole heir throughout their lifetime. The caretaker came into the home after the parent could no longer care for himself fully and had been spending a great deal of time with the parent. The child immediately suspects that the caretaker must have influenced the parent to update their will, and fortunately, the child can contest this in probate court.
Duress is when someone makes changes under threats or violence,
An example of duress would be if the person who was either included in the will or omitted from the will could show that at the time that the will was created, the person writing the will was being pressured financially or physically to write the will in a particular way. The courts will undo that, and provisions agreed to under such circumstances will not be enforced. The more common way this manifests itself is psychological pressure or blackmail or things of that nature. They go to the issue of does the will, as written, accurately reflects that person’s true intent.
Lack of Capacity
Lack of capacity is when someone with diminished mental capacity revises a will. When a will was revised, did the signer lack the capacity to make the changes in the will? If so, the operative document would revert to being will version 1. This could be a result of dementia, a recent accident or illness, or a mental health issue.
One thing for people to realize is that these are hard arguments to prevail on, and the reason is that the burden of proof is on the person making the claim to show that duress took place or that lack of capacity existed unless a particular exception applies. Often, we find situations overlap so that it may be clear at first whether lack of capacity, undue influence, or duress is the reason a document was changed shortly before someone passed away.
How Wills Are Interpreted
Undue influence, duress, and lack of capacity are not the only legal concepts that impact how likely a will contest is to succeed. Wills are also interpreted based on what is expected to be included in the will. For example, most of the time, the surviving spouse will be included in the will. Will contests are generally brought by people other than the surviving spouse, cousins, other family members, close family friends, and those kinds of folks. If the surviving spouse is omitted from the will, they have an entirely different way to challenge the will.
This is generally more in their favor because the law expects them to be included. That is through what’s called the omitted spouse doctrine. Which is technically also challenging the will but is governed by its own rule. So, if you are the omitted spouse, you will challenge the will, but you will have a much better chance of succeeding than other family members who’ve been omitted.
Will Contest Deterrence
So the basic idea is that if you’re writing a will for someone as a lawyer, there are certain things that you can include to try to deter a will contest. The most common of those is to include what is called a “no-contest clause.” This provision says that anybody, and potentially even their heirs, who challenges the terms of the will forfeits some or all of what they can get from the will.
Those are sometimes frowned upon by courts, but in certain cases will be enforced. Just their mere presence can act as a very strong deterrent to having a will contest and puts people on notice that a will contest isn’t without any potential downside. An increasing percentage of modern wills include a provision that penalizes people who contest wills.
The third category of probate litigation cases involves breaches of duty, often involving trusts. link to the trust litigation page
Common causes of trust disputes include:
- Undue influence suspected
- Invalid trust
- Lack of capacity
- Challenges to the trustee
KJMLAW Partners Trust Litigation Attorneys have extensive experience aiding in trust litigation matters such as:
- Breach of Fiduciary Duty
- Disputed Trust Accountings
- Trustee Removal
- Trust Disputes between co-trustees
It is increasingly common for sophisticated estates; many of the decisions are made outside of the will. It is common for estate planning documents to include a will and 1 or more trusts. The basic idea is they are trying to create trusts that carry out the client’s wishes. The second is to create a trust that takes advantage and minimizes taxation- owning property through a trust (doesn’t have to go through probate, be approved by a judge).
The last idea in creating a trust is that one of the characteristics of a trust is that it allows for the assets in that trust to be protected from creditors (lawsuits). Protections of property from lawsuits and creditors. To see how we handle trust Disputes, See pg ( insert trust page link)
Specific examples of KJM Law’s handling of Probate Litigation include the following:
We represented a daughter in probate litigation, where the trust company requested instructions from the court on properly valuing trust assets when beneficiaries could not agree on valuation methods. Three months after engagement and following discussions between beneficiaries, we reached an agreement on valuation nearly three years after the death of the trust’s creator. Assets included a home in the Hollywood Hills. KJMLAW Partners mediated to reach an agreement with the sibling holding out. One sibling argued over a $90,000 payout to be split between all four siblings. We explained that each beneficiary’s share (about $20,000 each) was insufficient to fight over in court.
After her spouse died unexpectedly, we represented the surviving spouse. The estate of the decedent included stock options set to expire in a few months. Because the probate process often takes longer than a year, we filed an emergency petition in probate court seeking the authority to exercise the stock options before they expired. The court granted our emergency petition. Our client was, therefore, able to exercise their right to the stock options. The options later became worth millions of dollars and would have been lost had the emergency petition not been filed.
We represented siblings who sued their sister, who was accused of unlawfully squeezing out her siblings from their father’s will. After moving in with their father, we showed that the sister convinced the father to change his estate plan to cut the other siblings. The sister isolated the parents and communicated directly with the estate planning lawyer, who drafted amendments and instructed the estate planning lawyer on what to include in the amendments. We showed that these changes were the result of undue influence. As a result, the court ruled in favor of our clients, and their share of the inheritance was restored.
Petitions for Probate
We also have extensive experience helping clients get court approval for a will in the absence of a dispute. For example, when the deceased’s assets are not in a trust or do not pass to beneficiaries of an insurance policy, a court may be required to approve the will and order how its assets are distributed. Getting court approval is often referred to as going through probate. That process begins by filing a document with the probate court called a Petition for Probate.
Who Most Often Signs a Probate Petition as the Petitioner?
The petitioner is the personal representative (executor or administrator) who signs the petition. This probate procedure usually takes eight to twelve months but can take longer if there are complications.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit)
If you are named as the executor in a will, you have up to one year after the person’s death to file probate and settle the estate in California. This may seem like a long time, but it’s important to remember that probate is a complex legal process. It can take several months of hard work to settle an estate.
Contact KJM Law
The complexities of contested wills, trusts, and estates require skilled California probate litigation attorneys who know how to handle the disputes and remain sensitive to the needs and desires of the family members involved. Cases involving loved ones who may feel omitted unfairly from a will or victims of undue influence can damage bonds and relationships. We work diligently to reduce the stress and angst associated with these disputes and to see to our client’s success.
If you are a beneficiary, trustee, or creditor or need assistance in connection with a California probate or trust dispute, please call our office at (626) 565-5680.