You can take any legal action you like in California court on your own, if you choose to do so; provided that, you’re not acting as an Executor, Trustee, or agent (all of which must be represented by lawyers in court). The problem with representing yourself in court is the complexities of California Will contest cases. The court procedure, discovery procedure, and trial procedures can be difficult to navigate if you are not experienced with doing so. This is true even of lawyers who do not practice regularly in Probate Court; it can be a daunting experience.
Why Are Trust and Will Contests So Complicated?
Trust and Will contest cases, any Trust or Will litigation case in fact, brings together two different areas of California law. One the one hand you have the California Probate Code and all of the California court cases regarding Trust and Will issues. On the other hand you have the California Code of Civil Procedure and California Evidence Code, sources used regularly in civil cases, but not as regularly in standard Trust and Will administration cases.
In other words, you have to be a Trust and Will expert, along with a civil litigation expert, to successfully navigate a Trust or Will contest. First, you have to know what action you need to take in court. If you are only filing a Will contest, then you need to file a petition for probate, object to anyone else’ competing petition for probate, and then file your Will contest complaint. In many cases, however, you have to file both a Will contest and a Trust contest because there may be some assets under the Trust and some under the estate. That has to be figured out in advance of filing.
Many cases also require a financial elder abuse lawsuit under the California Welfare and Institutions Code. This type of lawsuit can be filed either in civil court or probate court depending on the circumstances. This also has to be determined before filing.
Do you have any creditor’s claims against the estate as well? This could include a promise to make a Will, which is a claim against the estate. This type of claim is a separate lawsuit—different from a Will contest—and must start with filing a claim with the estate prior to the legal deadlines.
In all, you may have three or four separate lawsuits to file in a single case depending on the type of claims you want to make and the way in which the assets are held upon the decedent’s death.
Once you file your lawsuit(s), then you must discover all the relevant evidence. This is where the California Discovery Act comes into play. You have the right to seek information and documents from the opposing party, or any third-party who has relevant evidence. For example, banks, financial institutions, and medical providers all may have documents relevant to your Trust or Will lawsuit. And at some point you will need to take depositions of the relevant witnesses.
Eventually your case will go to trial if it does not settle before that point. And that’s where the California Evidence Code comes into play. Only admissible evidence can be considered by the court, so you have to make sure your key evidence is admissible. There is a procedure for every piece of evidence admitted by the court. You have to know those procedures to ensure your evidence is admitted and considered by the court.
So Do I Need a Lawyer?
The bottom line: you can handle your Will contest without a lawyer, but you may want to consider retaining legal representation. It can be a daunting task to see your Will contest case successfully through trial. So why not get all the help you can?
