Guide to the Process and Stages of Trust and Estate Litigation

When an individual dies, if there is a dispute about a will, trust, or other aspects of the administration of the deceased’s estate, the issues must be litigated in probate court.

Litigation refers to the process of resolving disputes by filing or answering legal petitions through the California court system. Disputes among the beneficiaries of a will, between a trustee and one or more beneficiaries of a trust, or between legal heirs in the absence of a will (heirs at law) may require litigation to resolve.

The guidance of an experienced probate litigation attorney can help anyone whose inheritance is being legally challenged. The California probate litigation team at Albertson & Davidson has earned a reputation as tough-minded trial lawyers who apply their courtroom skills to serve the interests of clients. The attorneys at Albertson & Davidson focus on handling complex estate and inheritance litigation matters involving probate, wills, and trusts.

Each case is unique, but below are the general stages of the trust, will, and estate litigation process. If you are involved in a probate dispute, need help with probate timelines or you have concerns about a recently deceased loved one’s will, trust, or estate in California, contact an attorney at Albertson & Davidson for a free and confidential consultation.

Research and Investigation Stage of Trust and Estate Litigation

During the initial meeting with a prospective client, our attorneys will review any documentation provided such as a copy of a will or correspondence from the administrator of the estate, and assess the nature of the issue to be litigated. There may be a complaint already filed, which we can obtain. We will gather the names and contact information of anyone involved in the probate case and of potential witnesses who have direct knowledge of the issue.

Our aim in the first stage of will or trust litigation is to gather all relevant documents and to investigate the facts surrounding your claim or the claim you are answering and the California probate law applicable to the case.

The Pleading Stage of Trust and Estate Litigation

Litigation begins when someone files a lawsuit, stating their claims against someone else involved in the estate. The petitioner files a complaint and the defendant files a response.

A petition asks the court to take some action, such as declaring a will invalid or someone ineligible to be a beneficiary of a will or trust. The response to the lawsuit may include a counter-complaint and the respondent’s own request for relief. A case may encompass multiple complaints and responses.

It is important to make a timely response to a complaint. A defendant is entitled to “reasonable time” to answer a complaint. The petitioner may seek a default judgment if their complaint is not answered in a reasonable amount of time.

After the lawsuit is filed, the court will set an initial hearing date. At the initial hearing, the judge acknowledges the case and those involved and asks each party how much time they will need for the next stage, discovery.

Discovery Stage of Trust and Estate Litigation

Discovery is the process of gathering evidence that may support your legal case, especially evidence obtained from the opposing side.

During the discovery phase, your attorneys will:

• Ask individuals on the other side to answer lists of questions
• Question witnesses under oath
• Obtain all relevant documents from the opposing parties
• File requests for the admission of evidence.

Discovery is meant to let each side know the facts of the case so they may argue the law in court. Discovery usually helps each side understand how strong their case is.

Depositions, or responses to questions under oath, take place before a court reporter who records the testimony to create a written transcript. Your attorney will help you prepare for a deposition and be present at the deposition to object to any improper questioning.

Mediation Stage of Trust and Estate Litigation

In many trust and will litigation cases, the judge will order the two sides to attend mediation to attempt to resolve the case without a trial. In mediation, a neutral third party meets with the parties to the lawsuit and their lawyers and helps them identify areas of agreement and work toward a settlement.

Anything said at mediation is confidential and cannot be used in litigation. The mediator cannot make anyone do anything. But a skilled mediator can often find creative solutions. If the process produces a compromise acceptable to both sides, the case can be settled without further litigation.

Expert Witness Depositions in Trust and Estate Litigation

It is likely that we will call upon an expert witness to assist us in developing your case if it moves beyond mediation. Such witnesses are recognized by the courts as experts in their fields and they testify in cases frequently. For example, our attorneys may hire a neuropsychiatrist or neuropsychologist as an expert witness to speak to the deceased’s mental capacity, or a forensic accountant to testify about financial records in a case involving the misappropriation of funds.

Expert witnesses submit written reports under oath, which are shared as a part of discovery. They are available to testify if the case goes to trial. Both sides typically present expert testimony. Because of the added expense of an expert witness’s preparation and testimony, we bring them into cases after mediation has failed.

Trial Preparation Stage of Trust and Estate Litigation

When a case does not appear likely to settle and the trial date draws closer, our attorneys begin preparation for trial. We organize the information and evidence obtained during discovery into a logical and compelling narrative to support your claims.

There are many tasks we go through for each trial, including:

• Preparing witnesses to testify
• Subpoenaing third-party witnesses to appear
• Deciding which evidence to submit to the court
• Organizing exhibits and preparing exhibit lists
• Drafting opening and closing statements
• Preparing direct and cross examinations
• Organizing medical and financial records, deposition transcripts, and discovery responses to coincide with witness testimony
• Preparing motions to exclude or admit evidence
• Preparing trial binders for counsel and the court
• Preparing our client for what to expect in court.

Trust and Estate Litigation Trial

The possibility of settling a case continues through trial until a jury returns a verdict. We will present any settlement offers to you along with our recommendation. Whether to settle is your choice. If a case cannot be settled, it goes to trial.

At trial, each side presents opening statements to provide an overview of the case. Then the party making a legal claim or alleging wrongdoing presents their case, including evidence and witness testimony. When they have finished, the other side presents its rebuttal. Each side has the opportunity to cross-examine witnesses the other puts on the stand to testify.

The opposing side cannot make you testify but can cross-examine you if you choose to testify. We will discuss with you well ahead of time whether you’ll need to testify and prepare you if you do. We cannot tell you what to say when answering questions but can tell you what we will ask you and what you are likely to be asked under cross-examination.

At the end of both sides’ presentations, each team of attorneys presents its closing argument to persuade the judge or jury.

Most probate cases are heard by a judge, but elder abuse cases go before a jury. Trials can take a day, several days, or several weeks. After each side has presented its case, the judge has 90 days to issue a decision. A jury usually begins deliberations right away and can take several hours to a few days to return a verdict.

Appealing the Verdict in a Trust and Estate Litigation Trial

If the judge or jury rules against you at trial, you have the right to appeal the decision to the California Court of Appeal. Most probate cases are not appealed. To appeal, we would need to be ready to show that the trial judge made a legal or procedural error or that there was insufficient evidence to support the probate court’s decision.

The right to file an appeal is subject to strict time limitations, which vary according to the circumstances of the case. If you win an appeal, the decision will be reversed and sent back to the probate court for a decision consistent with the appellate court’s judgment. If the probate court decision is upheld, you’ll need to discuss with your attorney whether you have reason to appeal to a higher court.

Contact an Estate Litigation Lawyer

If you have concerns about a recently deceased loved one’s will, trust, or estate or you have become involved in a probate dispute, an attorney with Albertson & Davidson LLP can help. You should consult our probate litigation attorneys about any issues regarding the distribution of significant assets from an estate.

Our founding attorneys Stewart Albertson and Keith Davidson are trial lawyers who focus on inheritance litigation. Our law firm has offices in San Diego, Carlsbad, Bay Area, Irvine, and Los Angeles. Contact us online or at (855) 928-0542 for a free initial consultation. We stand. We fight. We win.