Probate is the legal process of administering a deceased person’s estate in a Court case. In California if a deceased parson’s estate is worth more than $150,000, then it must be probated.
The probate process involves getting appointed by the court to be the one that is in charge of administering the estate. Notifying creditors, evaluating and approving or denying their claims. Notifying heirs and potential heirs. Notifying the appropriate governmental agencies. Taking care of the taxes of the decedent and the estate. Proposing the distribution to the court. Making the distribution after the court approves the petition to do so. Finally closing the estate.
Although it sounds simple enough, the process is complex and there are certain procedures and time constraints that must be followed. Using a well qualified Probate Lawyer is important. Many Probate Lawyers only practice in Estate Planning and Probate, but do not do Probate Litigation. It is important to ensure the Lawyers representing you are prepared to handle your probate even if litigation issues arise. Our firm handles all types of Probate, including Probate Litigation, Estate Planning, Trust contests, Will Contests, as well as assisting Small Business in forming, getting started and with litigation. We are a well rounded practice that assists our clients in every aspect of their financial lives. We have the experience to ensure your Probate is completed even if the most complex problem arises. We are here for you.
In 1984 Decedent passed and his sister commenced a Probate Proceeding, telling the court that decedent was only survived by his siblings. Decedent was survived by his Daughter and his two brothers and sister. Decedent and his daughter did not live together, in fact daughter did not meet Decedent until she was 13, about 5 years before his death. Sister presented a Will she claimed was the Will of Decedent.
The Will that sister presented was only witnessed by one person, California Law, Probate Code Section 6110, requires two witnesses, therefore the Court determined Decedent was intestate (without a will). Sister and Brothers continued with the Probate Proceeding without notifying daughter. Since Decedent was intestate, his estate was subject to be distributed pursuant to Probate Code Section 6400 .
In 2006, daughter learned of the probate proceeding for the first time. Daughter sought legal assistance and brought a petition before the Probate Court to set aside the 1985 order distributing Decedent’s property, an order that the property was held in constructive trust by those it was distributed to, treble damages based on fraud, attorney fees and costs, Pre-judgment interest, and any other orders the Court finds is Fair and Just.
After three years of litigation, including extensive discovery, defending a Motion for Summary Judgment, and other delay tactics by the defense the case finally set for Settlement Conference and Trial.
At the Settlement Conference, one of the Brothers agreed to settle the case. That Brother paid a settlement amount and was released from the case. The case went to Trial a couple of weeks later. Trial lasted for two half days, Counsel for the remaining Brother and Sister was encouraged to settle the case by the Judge, however the Siblings refused to settle.
The final Judgment came dow and it included a finding of Fraud by the Siblings, that the 1985 order was set aside, Constructive Trust was established for the money the Siblings had received, Treble damages for Fraud, Attorney Fees and Costs and Pre-Judgment interest payable by Siblings to my clients.
REQUEST FOR INSTRUCTIONS NOT TO PAY CLIENT’S INHERITANCE
The Administrator of the estate filed a request for instruction with the probate court seeking a determination that the Decedent did not intend for my Client to have both the Life Insurance/Retirement Proceeds and a Testamentary Trust he set up for her in her will. The only way for the Court to disregard the plain wording of the will was to find there was an ambiguous term within the will. Administrator alleged Decedent intended the term “estate” included the non probate gifts and life insurance.
Client was the recipient of some small life insurance policies and the death beneficiary on two retirement accounts. Client was informed by Administrator that Client had to make a choice between being a Beneficiary of the insurance/retirement and the gift in the will.
Administrator tried to admit evidence at trial of things Decedent allegedly said to him and his spouse (the parties that stood to gain if the Court granted their request) up until his last day indicating that Decedent intended Client to have a choice. We objected to any evidence other than the Decedent’s state of mind at the time of executing the will. The Court sustained our objections and the trial was reduced to 2 half days from Administrator’s estimate of five full days. The Attorney that Drafted Decedent’s will testified to decedent’s state of mind, and the Judge stated that she did not believe her.
Disposition. The Judge found that the term “estate” was ambiguous. The Judge also ruled that the intent of the Testator was that Client received both the Testamentary Gift and the Insurance/Retirement.
The Administrator spent over $118,000 to take the request for instructions to trial. Client’s costs were less than $30,000. This is an example of providing value for the services received.
TRUST ADMINISTRATION ISSUES
The Successor Trustee fails to act properly or in the best interest of the Trust’s Beneficiaries.
Successor Trustee attempted to claim that they had a purchase agreement to buy the Trust property. Additionally Successor Trustee claimed to have amendments to the Trust appointing them. Client filed a Petition To Remove Trustee, alleging self dealing, failure to account, breach of fiduciary duty. Decedent was suffering from dementia and did not have capacity to amend the Trust.
Disposition. At Settlement Conference, Successor Trustee Stipulated to resign, and that the originally named Successor Trustee (Client) become Trustee.
Successor Trustee failed to account for and distribute Trust Assets timely, claimed the right to surcharge Client for installment payments made on Trust assets that were distributable to Client. Successor Trustee failed to make payments to the County resulting in Liens on Trust Property, failed to repair Trust assets damaged by a storm. Client filed Petition to Remove Trustee, breach of fiduciary duty, failure to protect Trust Assets, failure to account. Trustee took so long to distribute the Trust that the cash in the trust was depleted by making payments on property that should have been distributed earlier. There was not sufficient money left to pay all of the gifts completely by the time Client filed the PEtition to Remove the Trustee.
Disposition. Settled by Successor Trustee distributing Client’s entire gift, thereby eliminating Client’s Standing. In other words, Client had all property gifted distributed to Client.