It is suggested that everyone has a will, but many do not start until they are nearing death. Regardless of how close your family is, death brings about emotions and actions that would never happen otherwise. Unfortunately, estate litigation is something that can divide a family if you do not prepare for it.
What is Estate Litigation?
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When you pass away without a clear will in place, litigation is the process of where lawyers and the courts decide who gets what. Anyone who has been married to you or shares DNA with you will be able to file a claim against your estate. An attorney for each person, including your belongings, will meet and attempt to come to a resolution. If this is not possible, it will go before a probate court judge to have a decision made. There are six reasons a will can be contested, but they are hard to win.
- Lack of Capacity – The person writing the will did not have the mental competency to understand what they agreed to fully. It is essential to make sure mental capacity is shown before writing the will to prevent contesting.
- Undue Influence – Occurs when the person writing the will is doing it under the influence (or pressure) from a friend, family member, trusted advisor, or healthcare worker. These situations usually leave many hurt and divisions in the family.
- Lack of Formality – It is essential to draft your will and have it signed according to the law. Rules will vary from state to state, but generally, two witnesses and a notary public must make the document official.
- Breach of Fiduciary Duty – Ensure the person you hire to help you with your estate planning is honorable and trustworthy, or there will be a breach of fiduciary duty.
- Elective Share – Consult with your attorney to determine if your state requires a formula to be followed with dividing up your estate. There are generally deadlines that must also be met.
- Forged Documents – One of the reasons that the will must be signed in front of witnesses is to eliminate the possibility of forging. If it is believed to be a fake signature, relatives may contest the document in court. Therefore, they must be able to prove the document was not signed by the passed loved one.
Process of Estate Litigation
If you have decided that you meet the criteria above and need litigation regarding the estate of your loved one, there are eight stages you will need to go through. The Orange County estate litigation attorneys are experienced and can walk you through each step.
Stage 1 – Research and Investigation
The primary step for any hearing process is for your attorney to gather all of the information and evidence necessary to prove your position. Documents they will need include:
- Copy of the will
- Communication between you and all other parties
- Documentation supporting your connection to your loved one
- Any witnesses who could help your position
- Information regarding your loved one (copies of signatures, proof of mental capacity, etc.)
It is important to remember the questions asked during the investigation section are to determine the strength of your case; it is not because they do not believe you. Estate litigation cases are complicated to win, so they want to know at the beginning how likely you are to succeed.
Stage 2 – Plead the Case
If your attorneys believe you have a solid case, they will begin filing the initial pleading. These are called petitions, and you are the petitioner. The petitioner must state why they are entitled to money or property in the petition. All of the information gathered in stage one will be presented to file a complaint. All other parties will be served a notice to appear for the first hearing, and they have the option to respond or object. An objection is when they deny any of the claims are true, while a response informs the court of information not included in the petition. While the first hearing is a required step in the process, parties do not need to attend in most cases. This step is to start the process and inform the courts there is a contestation desired.
Stage 3 – Discovery
The stage that is the most expensive is the discovery stage. It is also the most essential to your case. Your attorney will spend time to obtain all evidence that will be admissible to your position while everyone else does the same. Each party will present a written deposition, including interrogations that must be confirmed or denied by the other parties listed in the suit. People and information will likely need to be subpoenaed to enter as evidence. You have only one chance to have evidence admitted into the hearing, and everything is held to court standards for truthfulness. Court reporters will log all of the information, and video recordings will be used if someone cannot make it to the hearing. The only upside is that there is a time limit of seven hours for the deposition unless a court order is obtained. Your lawyer will look for any weakness in the other case and use that to support your position.
Stage 4 – Mediation
Following deposition, the judge will likely order everyone to go into mediation to settle the case outside of court. However, this is not a legally binding decision until everything is signed. You and your lawyers will agree to meet with a mediator and send them all of the documentation in a brief form. Mediation is completed in an office or another quiet area and will begin after the mediator has informed all parties of the process involved. Similar to the discovery stage, you will present the strengths of your case and your demands. The mediator listens to all of the evidence and attempts to create a solution that everyone is satisfied with.
Everything in this meeting is confidential and cannot enter litigation if an agreement cannot be met. This aspect is essential to create a safe environment for people to talk openly to the mediator. While the mediator has no power to force a decision, the goal is to come to a compromise that prevents any side from winning or losing. As a result, most cases will settle out of court, as it helps save a lot of money, and everyone gets something.
Stage 5 – Expert Witnesses
Almost all estate cases will require expert witnesses to be called in, especially in elder abuse cases. Neuropsychologists or psychiatrists are called in to talk about the decedent’s mental capacity if it is believed he/she was not of sound mind when the will was created or if you feel they were coerced into making the document. Accountants will be called if funds are believed to be misappropriated, and other experts could be called in to prove signatures were not forged. The number and type of experts will vary based on claims made in the petition, and all parties have the right to call in witnesses. Generally, due to the high cost of witnesses, this stage is only reached if an agreement is not made during mediation.
Stage 6 – Trial Preparation
Whether or not the case will reach trial, your attorney will begin preparing just if you cannot get a settlement in mediation. Lawyers must evaluate the costs involved and the strength of the case to help guide you to the best resolution. In some cases, it is better to concede to more than you would like in mediation because the case is not strong enough to receive what you want during the trial. However, once it is determined that an agreement will not be met, your attorney will focus on nothing outside of succeeding in court. They will prepare the witnesses, subpoena any outside witnesses necessary, and draft their statements. It is common for lawyers to play devil’s advocate with their clients to know what it will feel like to answer questions in court.
Stage 7 – Trial
It is uncommon for a probate case to go to trial but even rarer for them to be seen by a jury. They are most known as “bench trials” and generally take between a day to a couple of weeks, depending on the case’s complexity. Unfortunately, depending on your state and the docket, these cases could be straight in a row or hit and miss for several weeks. If the judge is not available for the entire trial, they will declare a mistrial, and a new date will be set with a fresh judge. Depending on the length of time the trial takes, you could end up losing more money than you win in a settlement.
Stage 8 – Appeals
The last stage of estate litigation is only if you lose at trial and wish to appeal the decision. Appeals are very rare because they are typically denied or lost. However, if your attorney feels the judge made a mistake in the decision based on laws in place, you can request a retrial. Everything will begin fresh, and you must prove where errors were made. If this is the case for you, contact the lawyers at Albertson & Davidson, LLP, to ensure you have the best chance at success.