Cost-Effective Dispute Resolution and Pre-Trial Settlement
We respect the need to resolve disputes as cost-effectively as possible. This is especially appropriate in disputed Trusts and Estates matters, where the parties are often relatives, and hope to preserve family harmony as much as possible, while minimizing – and preferably avoiding – the financial and emotional toll of litigation.
The vast majority of disputes are resolved without resort to litigation, and when litigation does start, it is typically resolved before a trial. Alternative Dispute Resolution (ADR) includes settlements reached through informal negotiation and mediation with a neutral mediator, and is a central part of our approach to disputed matters.
Although ADR generally refers to formal mediation and arbitration with a professional neutral, a key form of dispute resolution is informal negotiation, and we attempt, if possible, to informally reach a resolution or settlement before resorting to formal ADR or litigation. Experience, however, proves that commencing litigation is often a necessary step to reaching a decent settlement.
Prospective clients often unrealistically hope that a legal wrong can be righted by having counsel write a stern letter. Unfortunately, that is unlikely to suffice. The sort of people who will wrongly procure changes to an estate plan or engage in fiduciary or elder abuse will rarely “see the light” and “come clean” after getting a letter, no matter who wrote it or how compelling it is. Instead, the burden of defending against a lawsuit is often needed to prod a stubborn wrongdoer to the negotiating table.
Strict Time Limits
Probate and other civil litigation is subject to very strict time limits, so you should contact a litigation attorney right away if you have a claim that that could be litigated, have received notice of proceedings in which you may want your position heard by the court, or if you have been named as a defendant or respondent in litigation.
Litigation and Trial
Though we try where possible to reach a pre-trial settlement, if that is unattainable, we fight to win. For unusually large or complex trials, we are ready when needed to team with some of the finest probate litigation firms in the area – and in all of Southern California – on contested probate litigation.
Trust Litigation
Trusts are often the subject of disputes, which can result in litigation. As in the case of an heir disappointed by the terms of a will, someone disappointed by the distribution provisions of a trust may contest its validity. In addition, a successor trustee may try to remove an elder as trustee of the elder’s own trust, and beneficiaries may challenge a trustee’s conduct, on such grounds as improper management, failure to honor a trust’s terms, or failure to properly account to the beneficiaries.
Litigation over trusts can involve disputes over various issues, including:
- trust contests based on, e.g., lack of capacity, undue influence, fraud, duress, coercion, lack of proper formalities, or bequests to disqualified beneficiaries (including caregivers and attorneys);
- trustee incapacity, removal, and succession;
beneficiary claims; - accounting by trustee;
- breach of a fiduciary duty;
misappropriation of trust property; and - mismanagement of trust property
Probate Estate Litigation
Litigation over probate estates can involve disputes over various issues, including:
- will contests based on, e.g., lack of capacity, undue influence, fraud, duress, coercion, lack of proper formalities, or bequests to disqualified beneficiaries (including caregivers and attorneys);
- beneficiary claims;
- accounting by executor;
- breach of a fiduciary duty;
- estate mismanagement;
- community property; and
- family disputes.
Conservatorship Litigation
Conservatorships can be contentious and traumatic proceedings, where an elder person and those close to him or her may disagree strongly about the proper way of caring for that person and their finances. Such proceedings, like litigation over a living trust, can often amount to what have been called “pre-death estate contests”, where someone close to the elder person tries to determine control of the elder’s property and the disposition of their estate.
Litigation over conservatorships can involve disputes over various issues, including:
- a proposed conservatee’s capacity to manage his or her own affairs;
- financial or other abuse of the proposed conservatee;
- selection of the proper conservator;
- changes to the trust or will of the conservatee;
- accounting by a conservator;
- breach of a fiduciary duty;
- misappropriation of conservatorship property; and
- mismanagement of conservatorship property
Power of Attorney and Health Care Directive Litigation
Powers of attorney (“POAs”) and health care directives (“HCDs”) authorize an “agent” to act on behalf of a “principal” to make decisions concerning the principal’s property and finances (in the case of a financial or property POA) or medical or health decisions (in the case of a health POA or HCD). An agent owes strict fiduciary duties to the principal, but may be able exercise great power outside of court or other supervision. Given the serious risks of misuse or abuse, a financial POA is often called a “license to steal”, and a health POA or HCD is often called a “license to kill”.
Litigation over POAs and HCDs can involve disputes over issues such as:
- the validity of a recently signed POA or HCD;
- a principal’s capacity to manage his or her own affairs;
- financial or other abuse by the agent;
- accounting by an agent;
- conflicts of interest and other breaches of fiduciary duty;
- misappropriation of the principal’s property; and
- endangering the principal’s health or safety