Question

When should I pursue trust or estate litigation in California?

Yasha Bronshteyn - Estate & Trust Litigation - Super Lawyers

Answered by: Yasha Bronshteyn

Ginzburg & Bronshteyn, APC
Los Angeles, CA
Phone: 424-465-3277
Fax: 310-914-4242

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Answer

The death of a loved one is an unquestionably difficult time in your family’s life. Not only are you left with grief, but also the often complex task of managing your loved one’s estate following their death. Realizing that there is something wrong with your loved one’s will, trust or larger estate plan could create conflict and tension among your family members, so it is crucial that you understand how to address the problem at this time. 

You should pursue trust or estate litigation if you believe that there are questions related to the validity of your loved one’s will or trust as they relate to your rights as a potential beneficiary; including questions over the writing, administration, execution and management of these plans. Representation is available from an estate litigation attorney in two scenarios: first, if you want to question the validity of your loved one’s estate plan or you want to defend your loved one’s estate plan from the claims of another beneficiary.

Unfortunately, due to old age, medications or conditions such as Alzheimer's or dementia, your loved one may not have the mental capacity to understand the consequences of their actions as it relates to a trust or estate plan. However, litigation can also be used to prove that your loved one did have the capacity to make these decisions.

Common questions that can be answered through litigation include:

  • Did your loved one understand the nature of their actions at the time the trust agreement was amended or executed?
  • Did they understand and remember the nature and situation of their property at the time?
  • Did they understand and remember their relationship with the beneficiary at the time they made the amendment?
  • Was there undue influence or manipulation that caused them to change the estate plan unexpectedly? 

To find an answer to these questions, you need a trust litigator who will ensure your rights are upheld. 

Why you need an attorney focused on litigation 

Many attorneys who write estate plans only do so transactionally. They are only concerned with the drafting and administration of your estate plan, and may not have the skills, qualifications or desire to pursue litigation in court. Your loved one’s estate plan was written collaboratively as a family, so you will need new and separate attorneys to resolve your dispute. 

Simply put, estate litigation attorneys have a different skill set than transactional attorneys who do their work passively in a non-confrontational environment. You will need an attorney who has the ability to argue your case strongly and passionately before the court. Further, your attorney will understand that trust is key to getting results in the process, and getting results means being ultra-prepared.

By applying the analytical structure of Probate Code section 811 to the facts of the decedent's life situation your dedicated and aggressive trust litigation attorney can help achieve the appropriate results at trial or in mediation.

What the process is like 

If you believe that a loved one’s trust or estate plan could be subject to litigation, it is important to speak to an attorney as soon as possible. You must be aggressive or else the estate plan could be executed without further examination, leaving you without recourse to undo potential wrongs. 

Your attorney will analyze your situation and file a petition on your behalf. Then, the attorney will investigate your claims by taking depositions from family members, people involved in the planning process (for example: financial planners, doctors) and others who may have benefitted from the estate plan as it was drafted and changed. 

When your case goes to court, it will be heard by a judge. There are no jury trials for probate and estate matters in California. Judges rely on strict adherence to the law, so your attorney must possess the technical ability and attention to detail necessary to present your case persuasively under the language of the law. These techniques include cross-examining witnesses and securing expert testimony from neurologists and forensic accountants to tell the unseen side of your story.

The total length of time it takes to resolve a dispute varies from case to case depending on the complexities of your claims and the goals of other beneficiaries. Yes, these cases can take a long time, but it takes time to achieve the optimal results. Chances are they, at some point, understood what they were doing and wanted to plan it. Now, with litigation, we are focused on ensuring those wishes are carried out accordingly. 

You must have a strong case 

Whether your goal is to maintain and defend the trust or invalidate a trust because your loved one did not have the mental capacity to act appropriately, litigation is the process in which you will pursue these claims. No matter your needs, your first call should be to a trust litigator who can critically analyze your loved one's life in order to paint a clear picture of their motives and their capacity so you can achieve the appropriate results at trial or in mediation. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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