Monday, August 3, 2009

Do I Need To Hire A Probate Litigation Attorney?

What Is Probate Court Litigation?

Probate Court is the court that handles matters concerning wills and estates, such as the distribution of property or money to those named in a will. In California, the Probate Court also handles guardianships and conservatorships.
The terms “contested matters” and “litigation” are often used interchangeably. Both refer to situations that may require the Probate Court's action to resolve a dispute or fix a problem. Some contested matters do not involve animosity between the parties, while others do. If the matter surfaces because of a person's death or mental incapacity, then any necessary court proceeding will usually be filed in a court that has “probate jurisdiction.” Most of the matters handled by probate courts, such as admitting wills to probate and appointing executors, are routine and not contested.
Routine probate matters can be handled very efficiently. “Contested matters” handled by probate courts (also known as “probate court litigation”) is a broad term that includes a variety of situations, including, but not limited to:
■ Will contests (a challenge to the validity of a will);
■ Will and trust construction suits (a request that the Probate Court make a determination regarding the legal meaning or effect of particular wording used in a will or trust);
■ Guardianship contests. An example includes a fight over:
(1) whether a guardian should be appointed for a particular individual who allegedly has lost his mental capacity (and did not do any advance planning, such as executing powers of attorney), and (2) if so, who should be appointed as the guardian to make medical decisions and handle financial matters for that mentally incapacitated person);
■ Trust modification and trust reformation suits. This is a proceeding that requests the Probate Court to change (or "fix") the terms of a trust because something is wrong with the way the trust is worded);
■ Trust termination suits. This is a legal action brought to terminate a trust because the purpose of the trust has been fulfilled or can no longer be fulfilled; and
■ Breach of fiduciary duty actions. These are lawsuits by beneficiaries against an executor, trustee, guardian, or agent alleging that the fiduciary failed to act in accordance with the law and/or the instrument appointing her and thereby caused damage to the beneficiaries).
Do I Need To Hire A Probate Litigation Lawyer?
If you think you need a probate lawyer, it's probably because a relative or someone close to you has passed away (called the "decedent"). This is not an easy time to try to find a lawyer, but it must be done.
If you're involved in a lawsuit over an estate -- or if you think you may end up in a lawsuit -- look for a probate attorney who also handles litigation. There are basically three types of probate lawyers:
(1) those who only handle the administrative side of probates and drafting of will, trust and estate documents (who can loosely be called transactional lawyers);
(2) those who only represent clients in fights over who gets the estate (called probate litigators); and
(3) those estate and trust firms which do both.
Our firm, for example, does both. If you anticipate litigation, it is not a good idea to hire only a transactional attorney since at some point you will need to bring in another attorney who will need to get up to speed and this can increase your or the estate's legal fees. A probate litigation attorney may also be better at positioning you or the estate for the anticipated lawsuit.
Needless to say, the best way to prevent most probate litigation is by good planning. Good planning is what estate planning is all about. We will address ways to prevent probate litigation in other articles in this blog. The old statement "an ounce of prevention is worth a pound of cure" is especially true in estate planning and probate litigation. All litigation, however, cannot be prevented even with excellent planning. In those circumstances, you need a probation litigation attorney.
Posted by Henry (Hank) J. Morevec III. Hank Moravec is a partner at Moravecs, A Professional Law Corporation, in San Marino, California. He focuses his practice on Estate Planning, Trust and Probate Administration, Beneficiary and Trustee Representation, Tax Law, and Nonprofit Law. He represents clients throughout Southern California and his office is conveniently located for clients in the Los Angeles, Orange and San Bernardino Counties.
With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.

The office is located in San Marino, California, a suburb of Los Angeles in the San Gabriel area located 20 minutes from downtown Los Angeles. The firm represents clients throughout California and its attorneys appears in probate court throughout Southern California.