Encino Estate Litigation Lawyer

Estate litigation involves a dispute over the estate of a deceased person, a ward under guardianship or a conservatee under a conservatorship. In any estate litigation, there is a personal representative who administers the estate and the person or persons who stand to benefit from an estate. In the case of the estate of a deceased person (the “decedent”), the personal representative is either an executor, in the case where a decedent dies with a will (“testate”) or an administrator, in the case where a decedent dies without a will (“intestate”). The persons who stand to benefit from the estate are beneficiaries, heirs and/or creditors.

In a guardianship, the personal representative is a guardian and the person for whom the estate is administered is the ward. In a conservatorship, the personal representative is a conservator and the person for whom the estate is administered is the conservatee. In any of these cases where an estate is under the supervision of the probate court, disputes may arise regarding, for instance, the validity of a will, the need for a guardianship or conservatorship, or the conduct of the personal representative.

Barry Law Group has years of experience prosecuting and defending disputes in these areas. However, this page primarily discusses litigation in the area of decedent’s estates.

What is Litigation in a Decedent’s Estate?

Common estate litigation issues arise when there is a dispute over the validity or meaning of a will, when an heir, beneficiary, creditor or other person interested in the estate claims that the personal representative (executor or administrator) has violated fiduciary duties to the estate, failed to comply with requirements of estate administration, or engaged in other malfeasance, or where a creditor seeks to enforce a debt against the estate.

More specifically, estate litigation can arise when an interested person (such as, an heir, beneficiary or disinherited person or charity, or creditor) alleges that the decedent lacked the requisite mental capacity to create a will, that the will was not properly executed, that the will was the product of undue influence, duress or fraud, or that personal representative has improperly managed the estate or engaged in conduct that constitutes a breach of fiduciary duty to the heirs, beneficiaries and/or creditors. A personal representative must follow the terms of the will and must generally adhere to fiduciary duties owed to the estate and those persons interested in the estate. A personal representative must also generally keep the interested persons and the court informed of the administration of the estate.

Not all petitions filed with the court relating to an estate are contested. Sometimes, a petition should or must be filed to interpret or modify a will or bring assets outside of the estate into the estate. Sometimes, the spouse of the decedent has a claim to certain assets and must file a spousal property petition. Often, the relief sought by certain estate petitions is not contested but becomes a necessary part of estate administration. You can read more about the process of estate administration under the Practice Areas tab, “Estate Administration.”

On the other hand, contested petitions are those where two or more parties disagree about the validity or interpretation of the will or how it should be administered. Contested petitions include:

• Will Contests
• Claims of Breach of Fiduciary Duty
• Petitions to Establish Heirship
• Contested Accountings
• Suspension or Removal of a Personal Representative
• Contested Creditor Claims
• Recovery of Assets Belonging to an Estate (Probate Code § 850, et seq.)

Understanding Estate Litigation

Estate litigation is complex due to the intersection of various statutory and common laws that may be applied to resolve the dispute, either by settlement or trial. A good estate litigation attorney will be well-versed in probate law as found in the Probate Code and case law, the California Code of Civil Procedure, real estate law, business law and estate administration. Importantly, an estate litigator needs to know how to use the tools of investigation, discovery, motions, probate court petitions, oral argument and trial practice to effectively represent a client. Barry Law Group has this expertise.

Common steps in an estate litigation matter include:

1. Pre-litigation consultation and strategy: It is important that the client and attorney discuss the background and issues presented in any legal matter before proceeding to litigation. An attorney should attempt to understand a client’s goals, expectations and personal circumstances that may impact strategic decisions, effective representation and the outcome of the dispute. In some cases, it may be desirable to attempt a resolution before litigation is commenced, either through informal discussions between the parties and their attorneys, mediation or other means. Litigation can be uncertain, time-consuming, stressful and emotionally and financially draining. Barry Law Group will often encourage early resolution of disputes before resorting to litigation.
2. Filing a Petition: Estate litigation disputes are filed in probate court. In probate court, the initiating document is called a, “petition,” which is similar to a “complaint,” in civil court. In some cases, however, the document that initiates a dispute in estate litigation may be an objection to a petition filed by a person asking to become the personal representative or who has already been appointed as personal representative. A petition (or objection) will set forth the estate in dispute, the interested parties, the allegations forming the basis for the dispute, and requests for relief. In probate court, a petition (and objection) is verified (signed, under penalty of perjury) by the petitioner (or objector). Upon filing, the probate court will assign the petition a case number and an initial hearing date. Then, the petition is served, usually by mail or in person, on the parties who are interested in the dispute, such as heirs, beneficiaries or the personal representative.
3. An Objection or Response: In a disputed estate litigation case, a party who is interested in the estate is entitled to file a response or objection to a petition. For instance, where two people claim to have the right to be appointed the personal representative, both may file petitions to be appointed and objections to each other’s petitions. The objection or response may take varying form, but it typically denies that some or all of the petitioner’s allegations are true and asks the court to deny the requests for relief in the petition. When an objection or response is filed, the case is considered “contested” and “at issue.” If no response or objection is filed, then the court may grant the petition as “uncontested.” Before doing so, however, the court will want to ensure that all parties who have an interest in the estate and the requests for relief in the petition have been properly notified of the petition.
4. Investigation and Discovery: Investigation of facts supporting or refuting the allegations in an estate petition may occur before or during the litigation. A pre-litigation investigation may include interviews of potential witnesses, requesting and gathering pertinent documents or hiring a private investigator. After litigation is commenced, and the case is contested and at issue, the parties may proceed to conduct investigation and discovery. Discovery is the process of obtaining facts, witnesses and documents that might be used as evidence at trial. Discovery takes the form of written questions and requests for documents to parties in the litigation, subpoenas to third parties who might provide testimony or documents regarding the subject matter of the litigation and depositions of parties and third-party witnesses. Many estate litigation cases also require the testimony of expert witnesses. These expert witnesses may provide medical opinions (such as, relating to the competency of a decedent who created the will), forensic accounting opinions (such as, relating to the use or misuse of estate funds), opinions regarding the value of estate property, or opinions regarding the standards for personal representatives, to name a few. An experienced estate litigator, like the attorneys at Barry Law Group, will know how and when to use the tools of investigation and discovery to create a strong case for a client.
5. Settlement: Most cases settle or otherwise resolve before a trial. A settlement can occur before litigation is commenced, during litigation, and even after a trial, or during or after an appeal. The parties are encouraged by the court to consider settlement throughout the course of litigation. A settlement can be facilitated by the parties, their attorneys, through the mediation process, through voluntary and court-ordered settlement conferences, and by other means. Mediation and court-ordered settlement conferences typically utilize a judge, retired judge or experienced attorney to act as a neutral person to assist the parties reach a resolution. Efforts to settle are an important aspect of any estate litigation and a client should be regularly and reasonably advised about the pros and cons of resolving a case through settlement rather than by a trial, which can be costly and produce uncertain results.
6. Trial: If a settlement or other pre-trial resolution of a case cannot be reached, the court will schedule and hear a trial. In probate court, the parties are not entitled to a jury. That means a judge will hear the evidence in court and make a decision that becomes a final order or judgment. At trial, the testimony of witnesses is presented, documents are offered and admitted into evidence, oral and/or written arguments are made by the attorneys and the judge then renders a final decision. Barry Law Group has experienced trial attorneys to take your estate litigation case to trial, if necessary, and a track record of success.

Working With the Best in Estate Litigation

Our Encino estate litigation attorneys at Barry Law Group will stand with you every step of the way. We are experienced attorneys passionate about our work, dedicated to providing personalized attention, and committed to achieving the very best results for you. Our Encino, CA estate litigation lawyers can help guide you through the process of estate litigation and gather the necessary evidence and arguments to support your case, and will fight to protect your best interests. For more information on estate litigation, contact a member of our team today online or call for a consultation.