Kohl & Associates                         Orange County law firm specializing in Wills,  Trusts,                                   Attorneys at Law                                                         Probate, Conservatorships,  and Estate Litigation

ESTATE LITIGATION

Types of Estate Litigation

Although every case in unique, estate litigation cases generally, but not always, fall into one or more of the following types of legal proceedings: 

A.    Contesting a Will or Trust
B.    Beneficiary Challenge to the Administration of the Trust or Probate (Fiduciary Misconduct)
C.    Determination of Rightful Owner of Asset(s) in connection with a Probate or Trust
D.    Determination of Allocation and Distribution of Assets from Probate or Trust
E.    Co-Trustee Disputes
F.    Conservatorship Disputes

A.  Contesting a Will or Trust 

In cases where a Will, Codicil, Trust, or Trust Amendment didn't truly reflect the intent of the person who was alleged to have signed the document, the document can be declared invalid by the court, which allows the assets to be distributed in accordance with the previous estate plan, or if none, intestate succession. 

Such cases are typically filed by a child or children after the death of a parent and the child or children discovers, usually quite to their surprise, that their mother's or father's alleged Will or Trust either completely or almost completely disinherits that child or children in favor of another sibling or the deceased parent's new spouse or another third party, such as a care provider. 

These are high stakes cases.  A successful contest typically results in a distribution plan that almost always is to the great benefit of the person contesting the documents.  On the other hand, a loss in such a case may trigger a "no-contest" provision within the Will or Trust resulting in the person who lost being disinherited from what they would have received if they took no action. 

At Kohl and Associates we routinely represent individuals in such matters, sometimes defending the estate planning documents and sometimes initiating the challenge to have the documents declared invalid.   For example, Chris P. Kohl recently litigated a case in which his client's mother's long-term estate plan initially required a 50/50 division of assets between the client and the client's sister.  However, the mother developed dementia and the client's sister "encouraged" her mother to sign a new estate plan which reduced the client's inheritance from 50% of the mother's estate to 5% of the mother's estate.  After Chris P. Kohl filed the client's contest and after several court hearings the opposing side conceded and agreed to settle on terms extremely favorable to Chris' client. 

B.    Beneficiary Challenge to the Administration  

California law permits a beneficiary or other person or entity of interest, such as a creditor, to challenge the actions of the Executor (or Administrator) in a probate proceeding or the Trustee in a trust proceeding.  Such actions involve the challenging party requesting the judge to (1) find that the Executor or Trustee by action or inaction is violating the terms of the Will, Trust, and/or California law and (2) impose a remedy that fixes the problem and/or punishes the Executor or Trustee.   

When Kohl and Associates is representing the fiduciary (Executor or Trustee) we can generally quickly dispatch frivolous claims of misconduct.  When our client has made some errors and a lawsuit has been filed or is pending, we are very good at minimizing the negative potential financial and possible criminal impact upon our client. 

When we are representing the beneficiary and there has been misconduct by the Executor or Trustee, we aggressively move to remove that individual from power, recover all losses incurred due to the misconduct of the Executor or Trustee, and obtain additional damages, such a double or punitive damages.  In many of our cases our opposition, after seeing their potential liability, offer to resign and pay back 100% of the loss to the probate estate or trust, plus interest, without the need of going to trial.  

C.    Determination of Rightful Owner of Asset(s) 

In certain cases a third party individual or entity is holding assets that rightfully belong to the Probate, Trust, or Conservatorship estate.  In such cases we bring an action against the third party to force them to return the assts.  Such cases may involve a recovery against a bank, insurance company, an individual, or any other entity. 

Alternatively, the Probate, Trust, or Conservatorship estate may be holding assets that really belong to a third party.  Perhaps a parent was holding gold coins in his safe on behalf one of his children.  When that parent dies or losses mental capacity his or her Trustee, Executor, or Conservator might take a position, either in ignorance or otherwise, to claim such assets for the estate.  We can bring an action against the Probate, Trust, or Conservatorship to claim our client's assets. 

D.    Determination of Allocation and Distribution of Assets 

Sometimes there is no dispute over the terms of the Trust or Will, however, there is a dispute between beneficiaries over how to allocate the assets.  For example, if a Trust requires the assets of the Trust to be equally divided between the two children of the deceased parent, those two children may not agree on exactly which assets each should actually receive.  The both may want the parent's family home or the valuable rental property or control of the family business. 

If the individuals involved cannot resolve these matters on their own, most of the time these types of cases are resolved once both sides are represented by competent counsel.  Nevertheless, sometimes these matters due need to be resolved by a judge, especially if the problem stems from a provision in the Will or Trust regarding the allocation that is unclear to one or both of the beneficiaries.   

E.    Co-Trustee Disputes 

Often people appoint two or more trustees to manage their Trust, however, what happens when the co-trustees disagree?  Unfortunately what often happens is that the Trust Administration comes to a stop as the co-trustees cannot agree on how to invest the assets, how to allocate the assets, when to distribute the assets, and a host of other issues.  Such matters are usually simply resolved by a court action in which the judge is requested to essentially "break the tie" so a decision is made with respect to the matter in dispute and the administration of the trust can be completed.   

F.    Conservatorship Disputes 

Conservatorship matters typically due not involve litigation.  Normally a child, spouse, or other relative or close friend files for Conservatorship and the Proposed Conservatee either consents or has already lost capacity to a degree that they are unable to refuse or consent.  However, disputes arise in two circumstances.  First, two different family members can be in dispute over who should act as the Conservator.  Second, a family member of the Proposed Conservatee or the Proposed Conservatee himself or herself could oppose the Conservatorship on the grounds that it is not needed. 

For example, attorney Chris P. Kohl recently represented a son who wanted to file a Conservatorship on behalf of his father who was suffering from dementia and a recent severe stroke.  The father had a care provider who was financially taking advantage of the father and the care provider subsequently married the father when legal action was initiated.  We filed our Petition for Conservatorship, however, the new "spouse" (former care provider) opposed the Petition claiming it was unneeded and unwanted.   Eventually the matter went to trial and the judge agreed with our position and appointed our client as Conservator.  This allowed us to take legal action against the former care provider, such as to annul the marriage and recover the assets. 



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