As an estate beneficiary, you may be confused about what happens during estate disputes or estate litigation in Los Angeles and may want to talk to or consult a will contest attorney. This article will show you the different steps in estate lawsuits and managing an estate dispute so you can know what you can expect to happen when you are involved in prolonged litigating a Los Angeles estate.
Will Contest Steps Los Angeles California
The very first thing that happens when you engage in any protracted lawsuit is knowing how to deal with the emotional ups and downs of litigating in Los Angeles. First, a will has to be located. If a will is not located, there are certain California instate succession rules that go into effect to determine who has rights in the estate. That is pretty simple because there is a statute in the California Probate law that tells us the category of all ultimate heirs in relationship to the person who died (“decedent”).
Intestate Succession and Will Contests
Lets now assume that a will has been located. Then, the next step in finding out the course of a will contest. The person who wants to advocate for the validity of the will files the will in Probate Court for safekeeping and files a Petition for Probate to promote the validity of that will. This preserves the will and protects from tampering with the will during estate litigation. On the other hand, the person who contests the will locates a will contest lawyer and files a lawsuit in the Los Angeles Superior Court Probate and lets the court know the grounds for attacking the will. The term “grounds” means reasons for the contest of the will.
Reasons or Grounds for Contesting a Will in Los Angeles
Some of the most common grounds used by attorneys for attacking the will or disputing a will in Los Angeles are as follows: 1) lack of compliance with the execution or signing requirements of the will; 2) Undue Influence by someone who has used the deceased person to get his or her way; 3) Revocation, meaning that there is a later document that revokes the will that is presented to the court; 4) A donative transfer is invalid because the person who benefits from the will drafted the will and was in a category of persons specifically presumed to have engaged in undue influence; These can be care custodians, caregivers or anyone in a fiduciary relationship with the deceased person. A will contest lawyer can advise you of the different categories of care custodians.
Undue Influence and Prohibited Transferees – Updated 2020
Probate Code §§21360–21392 discuss how to invalidate or create a presumption of fraud and undue influence for donative transfers to certain categories of persons (called “prohibited transferees”) identified in Prob C §21380, unless the Code applies an exception. In 2020, the legislature added some new language to Prob C §21382 which was amended to now include that the exception to prohibited transferee rules for relatives does not apply to spouses who married the decedent while serving as care custodian, as defined in Prob C 21380(a)(4). This means that if you are a caregiver or care custodian spouse, you do not get to benefit from the exception of being a relative.
When a prohibited transferee benefits from the will, there are ways to overcome the prohibition on giving him- or herself donative transfers. One method is to have the instrument reviewed by another independent attorney (give a “Certificate of Independent Review”) who counsels the testator client about the nature and consequences of the intended agent appointment and transfer; attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence; and signs and delivers to the testator (“owner of the will”) an original and to the drafter a copy of a certificate of independent review. Prob C §21384. Estate litigation attorneys know how to overcome presumptions or to use the presumption in litigating a will.
See also Prob C §21384(c). Another exception arises if a court order is obtained approving the agent appointment and transfer under Prob C §21382(c). Generally, some nonprofit organizations are also excepted under Prob C §21382(d). In addition, an exception exists for transfers of property that do not exceed $5000, unless the total value of property in the estate of the transferor does not exceed the amount prescribed in Prob C §13100, i.e., $150,000 ($166,250 beginning January 1, 2020). Prob C §21382(e). Additionally, there is an exception for a transfer made by an instrument executed by a nonresident of California who was not a resident when the instrument was executed and the instrument was not signed in California. Prob C §21382(f).
Once the court invalidates a donative transfer, the instrument operates as if the disqualified person had died before the transferor without spouse or issue. Prob C §21386. This is the legislature’s intent to prevent the invalid transfer from passing to the spouse or issue (commonly a child or grandchild) of the disqualified person under Prob C §21110 (the antilapse statute). If the will does not provide for an alternative or residual beneficiary, the invalid transfer will pass to the donor’s intestate successors or beneficiaries under a prior instrument. Therefore, the instate succession laws in California are highly favored by people who want to file will contests. Notice that the invalidation of a donative transferee’s interest does not work to revoke the entire will or distribute the assets under a prior will in most cases.
Discovery Process in Will Contests
Once the will contest has been filed, the process of discovery begins. Discovery is a process by which facts are found by each side to promote their own argument. There will be interrogatories, requests for admission, document demands, as well as depositions to conduct. Discovery is a very expensive part of California will contest cases. Each side gets an opportunity to take the deposition of the other side’s witnesses and proponent of the will or the contestant of the will.
Once discovery is near completion in estate litigation, the court will set a status conference for the will contest attorneys to determine the best dates for a trial, but first encourages people to engage in mediation of the contest of the will, or a mandatory settlement conference set up in court with a settlement judge to see if the case can settle before a trial. Once the trial date is set, there are deadlines for closing the discovery and motions that the lawyer contesting the will has to notify you about.
Costs of Wills Contests
If you have not convinced yourself that settling the will contest is the best route than an estate lawsuit, then you should be prepared for the heavy cost of the will contest trial and discuss it with your will contest lawyers. Will contests and especially will contest trials are very expensive and you can expect to pay several hundred thousand dollars by the time you get to a trial. Having your day in court in disputing a will or promoting a will is an expensive process in Los Angeles. Most clients do not have a realistic expectation of the cost of a will contest.
To discuss the benefits and disadvantages of contesting a will as well as its costs, call Los Angeles Estate Litigation attorney Mina Sirkin, a Specialist estate attorney in will contests. Call 818.340.4479 for a no-cost or will contest free consultation.