Probate Litigation: A Comprehensive Guide for Heirs and Beneficiaries

By the time you finish reading this guide, you will know if you need to begin probate litigation and what you can expect to get from probate litigation.

Chapter 1

What is Probate Litigation?

Probate litigation is a lawsuit filed by an heir or beneficiary against an executor, administrator, or a third party. Let’s take a look at every person that could be involved in probate litigation.

  • A beneficiary is a person who is entitled to receive property (i.e. cash, real estate, stocks, bond, mutual funds, jewelry, etc.) from a will that has been admitted to probate.
  • An heir is someone who can expect to inherit from a probate estate in which there is no will.
  • An executor is the person named in the will to be in charge of the probate estate.
  • An administrator is the person who is in charge of a probate estate that does not have a will.
  • A testator is the person who created the will.

The probate estate is all the property, of whatever kind, owned by the decedent (i.e the person who died) in their own name at the time they died. The executor or administrator has the legal authority to act on behalf of the probate estate.

The purpose of a probate litigation lawsuit is to obtain an heir or beneficiary’s rightful inheritance. Probate litigation can also be a lawsuit filed by a beneficiary, heir, executor, or administrator to reclaim property that rightfully belongs to the probate estate or to have the court rule on the properness of the executor’s or administrator’s acts.

When an heir or beneficiary begins probate litigation

  • To contest the appointment of a particular person as administrator
  • To have the court order the executor or administrator to perform a certain act
  • To have the court instruct the executor or administrator to account
  • To reclaim property that rightfully belongs to the probate estate
  • To suspend the executor or administrator’s powers
  • To remove the executor or administrator
  • For damages against the executor or administrator
  • To appoint a successor executor or administrator

Probate litigation is different from an uncontested probate

Both probate litigation and probate take place in probate court. Probate is the court supervised process of gathering, managing, and distributing the assets of a deceased person to the people who are supposed to inherit it. Probate litigation will spring from an open probate estate. But it is important to know most probates do not involve litigation. Learn more about California’s probate process, as opposed to probate litigation.

The difference between a will and a trust

It’s very common for people to interchangeably use the terms will and trust. They are two different documents that govern separate legal entities.

A will is the document which states who will be in charge of a probate, who gets the property (and on what terms), and who will be in charge of the probate. This requires filing of the petition for probate, a number of supporting documents, and an order from the probate court appointing the executor of the probate estate.

A trust is usually created to avoid probate. The settlor (the person who created the trust) changes legal title  to their property, so that it’s in the name of the trust. When the settlor dies, the assets in the trust will be managed and distributed according to the specific terms of the trust.

A probate and a trust are two separate and different legal entities. Assets in a trust do not go through probate. Any assets the settlor failed to title in the name of the trust may go through probate.

Chapter 2

Why Start Probate Litigation

There are many different reasons that you, as an heir or beneficiary, may start probate litigation. The common element for all of them is that you have a reason to distrust the executor or administrator. This may be due to their misconduct, failure to act, or lack of communication.

Many people, when they learn their loved one has died, will turn to the person they believe is the executor and request a copy of the will. Seems simple enough, but sometimes you might find yourself in a situation where this doesn’t happen and litigation becomes the next step. Some of those problems might be:

  • The executor doesn’t respond or refuses to provide a copy of the will, it is usually necessary to start probate litigation.
  • When the executor or administrator has been administering the probate estate for a year or longer and refuses to account or promises to account but fails to actually do it. If this happens, then it’s time to begin probate litigation.
  • When an heir or beneficiary becomes aware that an executor or administrator is either taking probate assets to which they’re not entitled or using probate assets to benefit themselves, family, or friends. If this happens, then it’s time to start trust litigation.

In order to decide if you need to engage in trust litigation, make sure you know the difference between trust litigation and probate litigation.


Trust litigation versus probate litigation

Just as there is a difference between a trust and a will, there is a difference between trust litigation and probate litigation. Where we work in California, both trust litigation and probate litigation take place in the probate court. The primary difference is who is actually involved in the legal process.

  • Probate litigation involves the people and the property involved in a probate estate.
  • Trust litigation involves the people and the property that is owned by the trust.

A probate estate and the trust estate are two separate legal entities. It’s possible that a person who passed away may have both a probate estate and a trust estate. It’s important to note that probate litigation will not directly affect how the trust is distributed. In the same way, trust litigation will not directly affect how the probate estate is distributed.

Chapter 3

Ask Yourself Three Questions

Your next step is to clearly determine your actual problem. In this chapter, I will give you a few questions to answer. Your answers will help you figure out what your next step should be.

Does the will accurately respect the wishes of the settlor?

If there is a will, does the will accurately state the settlor’s wishes?  It’s important to note that this only requires your common sense answer, not a legal definition.

If the will doesn’t leave property to the people you expect or in proportions that make sense, then you may have a problem. If some terms look unusual, don’t jump to conclusions. Ask yourself:

  • Is there a schism in the family?
  • Was there a substantial length of time that people didn’t talk to one another?
  • Has someone shown a long history of being irresponsible?

If the answer to any of these questions is “yes,” that may be the reason property wasn’t left equally to the children or why someone else was chosen to serve as the executor.

Using your memory to honestly answer these questions is critical. Usually, parents leave their property in equal shares to their children. But that isn’t required by law. Something that happened in your family history may help explain a good reason to depart from this common pattern.

If there is a good reason then you may not want to contest the will. If there isn’t a good reason then consider a will contest.

Is the executor carrying out the terms of the will?

Assuming you are satisfied with the terms of the will, then evaluate whether the executor is acting at a businesslike pace to carry out its terms. Again, you’ll want to use a common sense analysis. Some things to consider:

  • If the executor has taken possession or control over the estate’s assets, are they being maintained properly and in a reasonable timeframe?
  • Was an inventory and appraisal filed with the court within 120 days of appointment?
  • Has notice been given to the three state agencies entitled to notice?
  • Have potential creditors been sent a creditor’s claim notice?
  • Has the executor indicated distributions will be made according to the terms of the will?

Not every probate goes smoothly and not every executor is failing to perform if they haven’t hit these benchmarks. Here too, a common sense analysis is important. If there are bona fide problems the executor has run into, then performing some of these tasks may be delayed.

If there has been a delay without a bonafide reason then you may want to consider filing a petition to remove the executor and replace him or her with someone competent to do the job.

Is the administrator doing their job?

Take the same mindset when analyzing if your administrator is doing their job as you did with an executor. The only difference between the roles is the distribution of the estate. Since there is an administrator, there is no will. The probate estate gets distributed according to California’s law of intestate succession. That’s just legalese for California law that tells people how an estate gets divided and distributed when there is no will.

Chapter 4

Create Your Action Plan

If the will is incorrect: will contest

If the terms of the will don’t accurately reflect the testator’s true intent, then you will want to consider a will contest. A will can be challenged for a number of reasons, but that doesn’t mean it can be challenged for just any reason. In California, for example, a will can be challenged for any of the following reasons:

1.    Lack of mental capacity

Lack of mental capacity is also referred to as mental incompetence. Whatever term you use, a testator lacks mental capacity if he or she is:

  • Unable to understand the nature of the testamentary act. For example, a person with an advanced case of dementia might be physically capable of signing, but is mentally incapable of understanding what a will does.
  • Unable to understand and remember the nature of the testator’s situation and property; or
  • Unable to remember the testator’s relationship to spouse, children, parents, siblings, and others whose interests are affected by the will

A testator is also not mentally competent if he or she suffers from a mental disorder with symptoms including delusions or hallucinations that result in the will giving property in a way that, without the delusions or hallucinations, he or she would not have done.

2.    Undue influence

Undue influence means excessive persuasion that causes the testator to act or refrain from acting by overcoming the testator’s free will and results in inequity. In simpler words, someone was able to override the testator’s free will in order to have their wishes put into the will.

There is not a documented standard to be met to prove undue influence. Each case will succeed or fail based on its unique facts. But the court is entitled to consider various factors that indicate the use of undue influence in the creation of a will.

Those factors include:

  • Vulnerability of the victim
  • The influencer’s apparent authority
  • The actions or tactics used by the influencer and
  • The equity (or inequity) of the result

In other words, someone’s influence overrides the testator’s free will, causing property to be left in a way the testator would not have done if they were permitted to make their own choices.

Most often, undue influence is not proved by direct evidence. That’s because it’s very unusual for a witness to be present to see, hear, and later testify to having inordinate influence over the testator. It is far more common to prove undue influence through indirect evidence. Meaning, inferences will have to be drawn from the evidence that is available.

3.    Fraud

For will contests, fraud is defined as the settlor being deceived into creating a will that they wouldn’t have created in the absence of the deception. Most often when fraud is alleged, the substance of the claim is either that the testator signed the will believing it was really a different document or the testator was provided significant false information about close family members resulting in them altering the terms of their will.

4.    Duress

Duress can be proven one of three ways:

  1. Unlawful confinement of the testator or the testator’s relative
  2. Unlawful detention of the testator’s property or
  3. Confinement of the testator by means of fraud or fraudulently made harassing or oppressive.

I would not recommend spending too much time trying to understand the nuances of duress. In my entire career, I’ve never seen a will contest pursued on the basis of duress.

5. Menace

Menace is simply the threat of duress.

6. Failure to properly execute will

If the will is incorrectly executed, then it can be set aside. Failures in execution can occur because someone other than the testator signed the will or the will isn’t witnessed.


If the Will is Correct: Keep your Executor in Check

Your executor has far fewer duties than a trustee would. That’s why it’s so important to understand the difference between probate litigation and trust litigation. An executor does not have a duty to communicate with beneficiaries. This can make gathering information difficult. But it’s not impossible.

There are a number of documents that disclose information about the estate that the executor must file with the court. Filing a request for special notice will ensure that you receive copies of these documents. Even an executor who refuses to willfully communicate with beneficiaries will disclose a substantial amount of financial information during the probate.

The failure to file these documents may also reveal that the necessary tasks are not being performed. If the inventory and appraisal hasn’t been filed, then the executor or administrator may not have gathered and taken possession of the estate’s assets. If an account has not been filed after the estate has been open for a year, then the executor or administrator hasn’t performed a required task. This can be a sign they are incapable of managing the estate or don’t want to disclose certain financial transactions.

Of course, if your executor won’t communicate with you or won’t voluntarily provide you with financial information, then that’s a warning sign. An executor who won’t communicate or provide information typically won’t do so because they are lazy, incompetent, or stealing from the probate estate.

If the laziness or incompetence of an executor is causing financial harm, then you’ll want to address it sooner rather than later
. If you believe you’re dealing with an executor who is stealing from the probate estate, then it’s important to address this as soon as possible. If you are unsure, then the executor’s account will give you the information you need.

Executor/administrator breach of fiduciary duty: damages to pursue

What if you tried to keep your executor (or administrator) in check, but acted too late? If your executor or administrator has breached their fiduciary duty (that’s legalese for “they screwed up and it costs you money”) then you can sue them for damages and certain forms of equitable relief. This is an involved discussion so it’s covered in depth in Chapter 6 below.

Theft of probate property

If you have discovered outright theft then you will definitely want damages. For a detailed discussion, go to Chapter 6.

Chapter 5

Duties of the Executor or Administrator

The executor or administrator, otherwise known as the personal representative, has far fewer duties than a trustee. You can see the duties of a trustee here .

An executor or administrator has the following duties:

  1. Using ordinary care and diligence to manage and control the estate;
  2. Taking possession and control of estate property; and
  3. Investing the cash in an interest bearing account.

The personal representative has other responsibilities beyond those that directly impact you as a beneficiary. For example, the personal representative has to give notice to creditors, address their claims, account, and distribute the probate estate. But, the personal representative has only a small number of duties to the heirs or beneficiaries.

Next, we will go into why these duties are important to heirs and beneficiaries.

Using care for management and control of the estate

Here is how California defines the executor or administrator’s duty to manage and control the estate.

(a) The personal representative has the management and control of the estate and, in managing and controlling the estate, shall use ordinary care and diligence. What constitutes ordinary care and diligence is determined by all the circumstances of the particular estate.
(b) The personal representative:
(1) Shall exercise a power to the extent that ordinary care and diligence require that the power be exercised.
(2) Shall not exercise a power to the extent that ordinary care and diligence require that the power not be exercised.

That’s a lot of legal language that simply means the personal representative has to act reasonably in managing the assets owned by the probate estate. The personal representative also has to act reasonably in gaining control of those assets. What is reasonable will depend on the circumstances the personal representative faces.

For example, suppose the estate owns a car. The personal representative has to take control of the car. If the car is parked in the deceased’s residence, then the personal representative might drive the car to their own home to secure it. Another logical route might be to take all the car keys out of the decedent’s residence but leave the car there. That way no one can drive it and it will stay locked in the garage.

But let’s say the car is held by a neighbor, in a fenced yard, with aggressive dogs in it. The neighbor will not turn over the car because he claims it was given to him by the decedent. Under special circumstances like this, the personal representative can leave the car there for the time being. The personal representative will need his or her attorney or the police in order to regain possession of the car.

If the personal representative is acting reasonably, then there isn’t anything you need to do. If he or she is acting unreasonably under the circumstances, then you should consider probate litigation.

Taking control of the estate property

Here is what California tells personal representatives they must do:

(a) Except as provided by statute and subject to subdivision (c):
(1) The personal representative has the right to, and shall take possession or control of, all the property of the decedent to be administered in the decedent’s estate and shall collect all debts due to the decedent or the estate. The personal representative is not accountable for any debts that remain uncollected without his or her fault.
(2) The personal representative is entitled to receive the rents, issues, and profits from the real and personal property in the estate until the estate is distributed.
(b) The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his or her possession.
(c) Real property or tangible personal property may be left with or surrendered to the person presumptively entitled to it unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. The person holding the property shall surrender it to the personal representative on request by the personal representative.

This is a complicated way of saying the personal representative must take physical possession or otherwise gain control of all the estate’s assets. He or she also has to collect any debts owed to the estate. If any estate asset generates income, then the personal representative collects all the income. Common examples of this include rent payments from real estate or interest earned from a bank account.

The personal representative must also pay any taxes owed by the estate.

The personal representative has the discretion to leave property with whoever is supposed to inherit it, unless the personal representative believes that property is needed to properly administer the probate estate.

For example, some property may need to be sold to pay taxes or expenses incurred during the probate process. If the estate consists of just the deceased’s house, then it will need to be sold during the probate to raise cash to pay for the various costs and fees necessary to complete the probate process.

Investment of cash

This is what California law says must be done with cash in the probate estate:

(a) Except as provided in subdivisions (b) and (c), the personal representative shall keep all cash in his or her possession invested in interest–bearing accounts or other investments authorized by law.
(b) The requirement of subdivision (a) does not apply to the amount of cash that is reasonably necessary for orderly administration of the estate.
(c) The requirement of subdivision (a) does not apply to the extent that the testator’s will otherwise provides.

So, the personal representative must keep cash in an interest bearing account. Some cash can be kept in an account that doesn’t bear interest if it’s reasonably necessary or if the will says it can be done.

Did you notice what this section doesn’t say?  Unlike a trusteea personal representative does not have a duty to manage estate assets. Instead, a personal representative is tasked with preserving the assets.

If the asset is cash it has to be put in an interest bearing account (with limited exceptions). But no sophisticated assets management is required or permitted. A good rule of thumb is that a personal representative’s job is to maintain the status quo to the extent possible and practicable until it is time to distribute the probate estate.

If the personal representative has carried out their duties then you shouldn’t have a need for probate litigation. But, if you believe they haven’t and that has caused you financial harm then you will want to consider your available remedies and damages.

Chapter 6

Remedies and Damages in Probate Litigation

At this point, you should have a good understanding if you have a good case to begin probate litigation. But before you begin your case it’s important to know what you may be able to get at the end of your case.

There are two broad categories of outcomes that are possible through probate litigation.

The first does not involve money. It involves the court making orders affecting who’s in charge of the estate, what that person must do, and what they cannot do.

The second involves money. If you’ve ever watched a TV show or movie involving lawyers, you’ve probably heard the word damages. In probate court, it’s referred to as a surcharge when it involves the personal representative.

Where someone has wrongfully taken property from the estate, whether it’s the personal representative or someone else, you may be able to get double damages.

The goal of this chapter is to help you understand these possible outcomes to help you determine what the goal of your probate litigation will be.

Non-monetary outcomes

The most commonly sought non-monetary outcomes in probate litigation are removing the personal representative and instructing the personal representative.

Suspending or removing an executor or administrator

A personal representative may be removed from office for any of the following causes:

(a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.
(b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.
(c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.
(d) Removal is otherwise necessary for protection of the estate or interested persons.
(e) Any other cause provided by statute

A personal representative can be suspended for the same reasons. A judge can suspend a personal representative, if you provide enough proof, while other litigation continues on. A personal representative can only be removed if they consent or after a trial.

Instructing the executor or administrator

Instructing the personal representative to do a specified task is useful when they are lazy or incompetent. For example, suppose the estate owns real estate that has been sitting for no good reason. In this case, a petition for instructions can seek an order instructing the personal representative to hire a real estate agent, list the property on the multiple listing service, and sell it for a commercially reasonable price.

Monetary outcomes

When the personal representative’s breach of one or more fiduciary duties has caused the estate to lose value, then making the personal representative pay damages (called a surcharge in probate court) to make the estate whole is appropriate.


If a personal representative breaches a fiduciary duty, then you get damages against the personal representative in any of the following three ways appropriate to your case:

  1. Any loss or depreciation in value of the decedent’s estate resulting from the breach of duty, with interest.
  2. Any profit made by the personal representative through the breach of duty, with interest.
  3. Any profit that would have accrued to the decedent’s estate if the loss of profit is the result of the breach of duty.

If interest is ordered then you get the greater of the legal rate on judgments (which is 7% in California) or the amount of interest the personal representative actually received.

Double damages

If a person has done any of the following then you can get double damages against them. Double damages are twice the amount of the surcharge or compensatory damages ordered in your case. This is what you need to prove in order to get double damages:

A person in bad faith, has wrongfully taken, concealed, or disposed of property belonging to the probate estate;

This is often used against the executor or administrator but can be used against someone else. For example, if a friend of the decedent took money from the decedent’s bank account before she died using the decedent’s durable power of attorney, then that’s good evidence they took the property and did it in bad faith.

A person in bad faith, has wrongfully taken, concealed, or disposed of property belonging to the probate estate by the use of undue influence; or

This can happen by someone close to the decedent manipulating the decedent into giving them the decedent’s property while the decedent was still alive. This is especially common among people with a cognitive problem, like dementia, and elderly people who are dependent on someone else or just too trusting.

A person in bad faith, has taken, concealed, or disposed of the property through elder financial abuse.

This is used when the taking was done while the decedent was alive and 65 or older. Often, this isn’t discovered until after death. This situation would allow the executor, administrator, or beneficiary to pursue property that would have been in the probate estate if not for the wrongdoing. A common example is the transfer of a home or bank account to a child or grandchild with the decedent getting nothing in return.

It’s very important to note in all three situations you must prove the taking was done in bad faith. To actually prove this, you’ll have to meet a high standard of proof. It’s common for these cases to be clear cut once you find evidence of what was done. If it is muddled, then you may still be able to get the property returned or damages ordered for what was taken, but it may not be possible to get double damages.

Chapter 7

Cost of Probate Litigation

In discussing costs, we only address the cost of probate litigation in California. That is because we practice here and are familiar with how attorneys charge for their services. The general ideas in this chapter may apply to other states but you should check with a local attorney if your case is outside California.

How to pay for probate litigation

The cost of probate litigation in California depends on two things.

  1. If you are an heir or beneficiary of a probate estate trying to get your rightful inheritance, or the executor or administrator
  2. If you are paying for litigation on an hourly basis or using a contingency fee.

If you are an heir or beneficiary seeking to get your rightful inheritance, then nearly any probate litigation attorney in California will be glad to represent you. You’ll typically pay using a traditional hourly fee arrangement. A smaller number of attorneys will agree to take on your case on a contingency fee basis.

We will dive into each of these cost structures in the next section.

If you are the executor or administrator then in most cases, the cost of probate litigation will be paid by the probate estate. Your lawyer will be paid an hourly rate that must be approved by the probate court judge.

The one important exception to this is when your goal as an executor or administrator is to get property back into the estate. In other words, if property was wrongfully taken from the deceased or the estate, and you want title or possession of that property, then you will have to litigate to get it back.

If the estate has few or no assets, then you will almost certainly need a probate litigation attorney who will take your case on a contingency fee. This is simply because of the risk the attorney takes representing an estate with no assets in it at the start of litigation.

How to pay for probate litigation: hourly attorney fees

Hourly fees in California probate litigation cases are just what you expect them to be. You pay the law firm for the time they put into the case and the various costs incurred in pursuing your case.

Attorneys are paid an hourly rate, or a range of rates if several attorneys are working on the case. Paralegals are paid at a lower hourly rate.

In addition, various out of pocket costs will be incurred. When you hire an attorney under an hourly agreement, there is no promise of any kind of outcome. What you are paying for is the time the law firm puts into your case.

There is no way in advance to know exactly the total cost under an hourly fee agreement. The range can be so wide that it can’t be estimated at the start of a case. It is impossible to know at the beginning of the case exactly how much time will go into your case and what the total out of pocket costs will be.

Understand that an estimate is just that, an estimate. If your case ends early then the money held in your attorney’s client trust account will be returned to you. If the money in the client trust account runs out, and your case is not finished, then expect to have to deposit more money in the client trust account.

Factors that influence hourly fees

When you hire an attorney on an hourly fee basis, you can expect to be asked for a retainer. A retainer is money that is deposited in the firm’s client trust account. The money sitting in this account can only be used for the work and costs for your case.

You should get a monthly invoice from the law firm, which will show you the hours spent on your case, who performed the work, what work they performed, and details for any costs related to your case. Costs include items such as filing fees, deposition transcripts, copies of documents, process service, etc.

There are any number of out of pocket costs that may be incurred for your case. Those costs will be itemized in your monthly invoice.

In an hourly fee retainer agreement, if your case ends and the initial retainer has not been entirely used, whatever is left gets returned to you. The flipside to this is if the firm has exhausted the amount you first deposited, then you must replenish funds into the client trust account to keep the firm working on the case. As much as you might not want to hear this: You may have to deposit more money multiple times depending on the amount of your retainer, amount of work performed, and out of pocket costs incurred.

How to pay for probate litigation: contingency fees

Under a contingency fee agreement, you will not pay anything unless and until that attorney has gotten you something of value in return. “Something of value” could be money, real estate, tangible items, etc.

It is unlikely that you will know everything of value owned by the trust at the start of the case. Whatever you win that has financial value then becomes the basis for whatever the payment will be under the contingency fee. Most firms will offer some form of a tiered contingency fee agreement.

At The Grossman Law Firm, we structure our agreement in the following way for the vast majority of our cases:

  • 25 percent of whatever value is recovered if we’re able to resolve the case without having to file a petition in the probate court,
  • One third of what’s recovered if the case settles at least 90 days before the first set trial date, and
  • After that time, either because there’s a settlement close to trial or because there’s been a trial and there’s a judgment in your favor, then it’s 40 percent of what’s recovered.
  • In addition, the firm is reimbursed for direct out-of-pocket costs associated with your case.
  • If there is no recovery then you are not charged any fee nor are you responsible for reimbursing for costs

In addition to paying attorney’s fees, you’ll also be responsible for reimbursing for actual costs incurred. Typical probate litigation case expenses include court reporter fees, deposition transcripts, certified copies of certain official documents, regular copies of other types of documents, process service, and filing fees. If there are experts, then there are going to be expert witness fees.

When is the contingency fee method right for you?

So you might be thinking, “can I afford to get involved in probate litigation?” That’s going to depend on what you’re trying to achieve, what evidence you have readily available, how difficult the opposing party is going to be, and how difficult opposing counsel is going to be. The more that needs to be done in your case, on an hourly basis, the more it will cost you.

For many people, it’s a scary idea to go into a case not knowing the total cost and not knowing if they can afford the total cost. No one wants to start a lawsuit, run out of money in the middle, and lose their attorney.

A common way of solving this problem is hiring an attorney on a contingency fee basis. This way you don’t have to worry about running out of money. It’s important to note that both parties have to agree to a contingency fee.

This is because a contingency fee is a form of risk shifting. When you come to a law firm saying that you have a good case, and want them to represent you, you have to provide a way for them to get paid for their work. The firm must evaluate the relative strength of your case because of the risk they are taking. Most cases take somewhere between one and three years to ultimately conclude, whether that’s by some sort of negotiated settlement or by trial.

The firm knows they are going to be putting in a considerable amount of time and they are going to have to spend money out of their own pocket in order to pursue the case. If they are unsuccessful, i.e. if there is no recovery, then under a contingency fee, you do not pay the firm anything.

That means the risk has shifted to the firm. If things go badly, then the firm will pay for the entire case without getting anything in return. On the other side is the possibility that things go better than anybody would have anticipated at the beginning of the case. It may be that the case settles somewhat earlier than anyone would think.

How these arrangements apply to common types of probate litigation

The cost of suing an executor or administrator for breaching their fiduciary duty

The single most common type of litigation is suing an executor or administrator for a breach of their fiduciary duty. The most common types of breaches of fiduciary duty are: failing to account, mismanaging or wrongfully taking estate assets, or the executor or administrator performing needed tasks in a timely manner resulting in a delay distributing the assets to the heirs or beneficiaries.

The factors that will affect the total cost of your case are going to be: how difficult it is to prove the breach of fiduciary duty, how difficult the executor or administrator wants to be in this litigation, and the particular judge to which the case has been assigned. Some breaches are not that difficult to prove.

For example, if you are suing the executor or administrator because they failed to account, it’s really a very straightforward case. You will note the court’s register of actions showing the estate has been open for over a year. After that, you will state in your petition no account has been filed, and that is pretty much the entire case. If your case is in fact that straightforward, you are going to have relatively low costs.

On the other hand, your case may be much more complex. For example, if you’re challenging an account, or you are litigating over the need to make a distribution, then your costs can greatly increase. More witnesses need to be involved, more documents need to be obtained and examined, and the possibility of bringing in expert witnesses all drive up the cost. You could also run into a situation where the executor or administrator is difficult simply for the sake of being difficult. That’s also going to be more time and possibly cost more because of additional work that needs to be done.

Your particular judge is also a factor in the cost of your case as well. Some judges want to keep cases moving and monitor attorneys to make sure that happens. Other judges are not worried about cases going on for a long time even if there is no good reason.

Some judges have no problem setting trial dates while other judges will not set trial dates unless the parties have gone to mediation or they’ve engaged in some other kind of alternative dispute resolution. A judge like this simply will not give you a trial date without meeting these hard and fast rules, which means more time and more costs associated with a case.

The range for what these cases may cost really is very wide because of these factors. On an hourly basis, if your case is straightforward, you may finish the case for something less than $5,000. As the complexity and the difficulty increases, you will see a steep climb in cost.

Getting the case to trial may cost anywhere from a hundred to a hundred fifty thousand dollars. Of course, if you settle the case along the way, that’s going to reduce the actual cost.

If you’re the beneficiary and you have hired your attorney on a contingency fee basis, then you know in advance that your cost is going to be the percentage of what is actually recovered plus the direct out-of-pocket costs related to your case.

The cost of will contests

Will contests are only filed by potential beneficiaries and heirs; they are never filed by executors. If you filed the will contest, hiring a lawyer on an hourly basis is very common. There’s a much smaller number of lawyers who are willing to take on a will contest on a contingency fee basis. You can expect that any lawyer who’s considering a contingency fee is going to evaluate the facts of your case with you before agreeing to take it.

If you are the executor defending the will contest, then you’ll pay your probate litigation attorney on an hourly basis from the probate estate. Your lawyer will only be paid after petitioning the court to approve attorney’s fees and costs.

The factors that will increase the cost of your case are: how long your case goes on, the number of witnesses involved, and the number of records that need to be obtained and analyzed.

Will contests almost always start with the belief that the person who created the will either had some sort of mental incapacity or they were subject to undue influence. That nearly always means there will be a need for some number of depositions, financial and medical records that need to be obtained, and very commonly there’s a need for expert witnesses.

A will contest that goes to trial can easily have a cost of a hundred to one hundred fifty thousand dollars. If you have hired your attorney on a contingency fee basis, then you will pay a percentage of whatever you receive from the trust plus your out-of-pocket costs.

The cost of suing a third party as the beneficiary

A beneficiary suing a third party who took property from the probate estate is different from a breach of fiduciary duty case. This can be litigation against an executor or administrator, or someone else who took estate property, quite likely while the deceased was still alive.

A common scenario is the deceased transferring the title to real estate to somebody else while they were alive. After they have died, the claim states that the property really belongs to their estate. You can hire a lawyer on a regular hourly arrangement or you may find a lawyer willing to do it on a contingency fee.

If you are the executor or administrator, then there is a very strong likelihood you will pay your attorney at an hourly rate. The one important exception to this is if there are either no assets or very few assets in the estate. In those circumstances, the executor or administrator does not have the resources to hire a probate litigation lawyer on an hourly basis. In that circumstance, you’ll almost certainly need to hire a lawyer on a contingency fee basis.

The factors that determine the cost of a case like this are similar to what you see in a will contest. The interesting part of this is that a person who has taken property is really incentivized to litigate the case. That’s because unlike a will content where there’s an open question about who’s going to inherit, when a third party has already taken something, they now have title or they have physical possession. They will not want to give up possession, control, or title.

Not everyone in that situation is necessarily irrational, but it is very common for people like that to dig in. If your case goes to trial against the third party, it would be unsurprising if the total cost of the case is anywhere between seventy-five thousand and one hundred fifty thousand dollars on an hourly basis.

If you hired your attorney on a contingency fee agreement, then again it is going to be a percentage depending upon how far you’ve gone into the case plus the direct out-of-pocket costs associated with your case.

Chapter 8

Does Probate Litigation seem like the Right Step for You?

If you haven’t gotten your rightful inheritance, then know you have to take action to make that happen. Nothing happens automatically when trust administration has gone bad. Let’s be very clear, if you think trust litigation is right for you and walk away without taking any action, you could lose some or all of your inheritance. 

If your case is in the state of California and you’d like an honest evaluation of your situation, then give us a call at (888) 443-6590 or fill out our contact form

Learn about the probate process from beginning to end in our Guide to California Probate.

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