Times like these are hard, especially when having to litigate an estate.
What is Probate
To understand what probate litigation is, one first has to understand what is “probate.” When a loved one dies, i.e., the decedent leaves behind their property, jewelry, bank accounts, etc., i.e., the decedent’s estate. The decedent’s estate must be transferred to family members (beneficiaries) and heirs after all taxes, debts, etc. are paid out.
Choosing the Right Probate Law firm is Paramount
When you are looking for an Orange County Probate Attorney. Hess-Verdon & Associates is one of the most reliable and most sophisticated trusts and estate law firm in the state of California at both the trial and appellate levels.
Our probate litigation team has spent years acquiring extensive experience in trial preparation, strategy, and trial presentation to help you with your specific case.
We welcome the opportunity to discuss your needs, our qualifications, staffing approaches, and rate structures with a view toward the successful resolution of Estate, Trust, and Probate-related problems.
HESS-VERDON IS YOUR #1 SOUTHERN CALIFORNIA TRUST & ESTATE LAW FIRM
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To understand what probate litigation is, one first has to understand what is “probate.” When a loved one dies, i.e., the decedent leaves behind the property, jewelry, bank accounts, etc., i.e., the decedent’s estate. The decedent’s estate must be transferred to family members (beneficiaries) and heirs after all taxes, debts, etc. are paid out.
Probate means there is a court case that deals with:
- Does a will exists and is it valid;
- Determining who are the decedent’s heirs and beneficiaries;
- Understanding how much the decedent’s property is worth based on appraisals, etc.;
- Managing the decedent’s financial responsibilities, i.e., taxes, debts, etc.;
- Transferring the decedent’s estate to the rightful heirs and beneficiaries.
Within the probate process, will be an administrator (if there is no will) or an executor (if there is a will) to ensure the following:
- Collect the assets (see: stealing from an estate)
- Pay debts and expenses
- Distribute the remainder of the decedent’s estate to the beneficiaries
The probate court will supervise the probate case and will intervene should litigation occur. From when the decedent dies to the distribution of assets can take upward of 9 months to 18 months. If probate litigation occurs, it can tie up the assets for much longer.
What is Probate Litigation?
Probate litigation is the process of an heir or beneficiary to challenge a provision of the Last Will and Testament. When a beneficiary or heir feels there is an inherent flaw in the Will or a breach of fiduciary duty, they will conduct a fact-finding mission, typically with a probate litigation attorney, to prosecute for the defined cause of action.
Learn more about “Trust Litigation.”
What Are Some Reasons Beneficiaries Consider Probate Litigation?
The most common reasons beneficiaries and heirs look to dispute the last Will and Testament are the following:
- Undue Influence: Undue influence is the act of influencing a person (grantor) to act otherwise by their own free Will or without adequate attention to the consequences. Sometimes this is hard to define because undue influence usually takes place behind closed doors and typically no witnesses.
- Lack of Mental Capacity: Lack of mental capacity is based on the disability and health of the grantor. Limitations such as dementia can be considered lacking ability and open doors for probate litigation.
- Duress: Duress is the act of influencing a grantor with acts of violence, threats, constraints, and other actions taking away the rights of the grantor based on fear.
- Intentional Interference: An example would be a decedent name a friend as their agent under the Power of Attorney and their friend changes the names of beneficiaries and appoints themselves to the inheritance.
- Administrator appointments: When a person dies without a will, it is called dying intestate. The courts will appoint an Administrator, but conflicts of interest can create concern for the beneficiaries.
- Formal Accounting: The Administrator or Executor must be transparent and be reasonable in their Administration updates and accounting.
What are some High-Risk factors for Probate Litigation?
What groups typically respond more to using litigation? Probate litigation is usually based on sibling rivalry, second marriages, and family’s that are dysfunctional. To mitigate probate issues as it pertains to second and third marriages is to have a prenuptial agreement to reduce or eliminate prior family agreements and understandings. Ownership of properties and how you hold title is an essential topic of interest. Ask an estate planning attorney regarding the differences between community property, joint tenancy, etc., to ensure you have the right one for your particular family situation.
What are the steps of the probate litigation process?
Probate law is highly complex, and discussing with a probate litigation attorney is the first essential step to understanding your legal right and how to proceed. There are instances where the courts can see you as unreasonable due to the fact you did not do your due diligence upfront.
What is Probate and How Can You Avoid It?
We understand the probate legal and administrative headaches you might face during such a difficult time. We also know it’s often difficult to find attorneys experienced in Trust and estates with proven litigation skills. So let’s go over a few crucial facts and best practices to ensure you get experienced legal counsel and avoid legal complications.
First of all, Probate is a court-supervised procedure that can take several months to several years, depending on multiple complex factors.
For an uncontested probate proceeding, it can be between 10 months to 18 months. For contested, i.e., probate litigation, it can take years.
Now, a Probate attorney can guide you through the judicial process. The decedent’s estate is valued, beneficiaries are determined, and executor in charge of the estate is declared.
Our probate litigation attorneys are well versed in helping mitigate loss, ensuring a cost-effective and smooth process.
See: California Probate Fees (chart)
Need immediate assistance, feel free to call us now at 888-318-4430.
In California, below are the top 4 reasons the court will oversee estate cases:
A Valid Will: The decedent’s valid Will, managed by the probate judge and the court of decedent’s jurisdiction.
- The dependent passed intestate (without a Will)
- A challenged Trust: The reviewing of the tested Trust as to the validity, capacity, fraud, or undue influence.
- A Trust is unfunded, and property remains outside of the Trust’s intended protection from the probate process.
Moreover, the probate court will look to certify the executor designated in the decedent’s estate plan or may appoint another 3rd party administrator under certain circumstances.
Need a Second Opinion?
There are times when you need a second opinion from another attorney. We can confidentially evaluate what the problems and solutions are for your case. Our probate attorney will tell you the truth about what the source is of your delays, questions, or increased expense.
If you are currently in litigation, consider the following:
- Why is this taking so long?
- Is it your lawyer?
- Do you wish your attorney was more like your opposing counsel?
- Why is this costing so much?
- When will this be over?
- When should you settle and for how much?
If you have questions that your attorney is not answering, or the litigation has taken unexpected twists and turns, you should seek a second opinion.
What is the cost of a second opinion?
Second opinions on handling your case can be rendered on favorable terms, in some cases, at no charge.
To discuss your situation, to meet with us, or to get your questions answered, please call our office to schedule an appointment.
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PROBATE ATTORNEY NEAR ME
Many people believe to search for “Probate attorney near me” is ok but that may be a downfall. You see, there are dozens of estate planning attorneys in Orange County, and they do quite well in their endeavors. But probate is an entirely different situation, especially when a beneficiary may be contesting the will.
Has a family member has been subjected to emotional, physical, and financial abuse?
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If someone dies intestate, i.e., without a Will, then you will enter into the California probate process.
We recently handled a case where a mom added her daughter to her accounts to help with bill paying. Her son assured all was correct, continued his day-to-day activities. Mom died in 2019, making the son the successor trustee. All of the accounts have, “Transfer on Death” (TOD) designation, and go to the daughter outside of the Trust.
The daughter refuses to split those equally because she feels that she deserved them for taking care of their mother.
Issues like this happen more often than you think.