If another party is denying your inheritance or if they are mishandling a loved one’s estate, then you may have to pursue probate litigation to ensure that California probate law will uphold the final wishes of the deceased.
Below are some of the questions from our clients that we commonly answer regarding probate litigation matters. Contact our Oakland probate litigation lawyers today if you need experienced legal representation in contesting a will or trust.
So, what happens if a person dies without a will?
If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.
Codicils. What are they?
A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.
What are creditors’ claims?
Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.
Can I handle probate without a lawyer?Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.
What is a fiduciary accounting or duty?
A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.
Why would I contest a will?
There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.
What is probate litigation?
What is probate?
Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.
How to Get Support for Undue Influence Cases
How can I prove undue influence occurred?Proving undue influence can be difficult. However, a knowledgeable probate litigation lawyer can give you an excellent opportunity to resolve the issue. Courts may rely on witnesses who knew your loved one well and may ask them to describe the relationship between your loved one and the person accused of undue influence. If you can prove that your loved one depended or trusted this person or that a medical issue made your loved one vulnerable to influence, the will may be declared defective.
How can I prevent undue influence from affecting my loved one?
If you are worried about your loved one suffering from undue influence, then the best way to prevent this is frequent and regular communications and visits. Make sure your loved one is comfortable speaking to you about anything that may be bothering him or her. Isolation can leave an elderly person particularly vulnerable to financial exploitation and abuse.
If you believe someone is currently taking advantage of your loved one, then talk to an attorney as soon as possible. A lawyer can work with you to explore your options. If your loved one has a lack of capacity and cannot make rational decisions, then you may need to ask a court to appoint a conservator.
Can I claim undue influence after my loved one passes away?In many cases, relatives may not know what caused a loved one to leave them out of a will until after that loved one dies. Often, the person who commits undue influence attempts to hide the act until the loved one passes. When this happens, family members and others can still take their case to probate court. It may then may result in the judge declaring a will defective.
What actions are considered undue influence?
What constitutes undue influence is a gray area that will always be fact specific. In some cases, an elderly person will alter or update a will to leave a larger gift to a caretaker or favorite relative who has been a source of support near the end of the person’s life. This is not undue influence.
However, if this friend or caretaker used improper means to coerce your loved one to significantly alter the will, this may constitute undue influence. If this person threatens your loved one and forces him or her to change a will, then that is also undue influence.
Who causes undue influence?Unfortunately, some individuals want to take advantage of vulnerable people, including the elderly. The person who commits undue influence to gain personal benefit may be a friend or relative of the elderly person. Those who provide a service for the elderly person, such as in-home caretakers or nursing home staff, may also attempt to take advantage of this person.
General Probate Litigation
Factors in Determining the Cases We Take
Our Oakland probate litigation attorneys do not take every case that walks through our door. In this video, Charles Triay explains how he decides whether or not to take a case involving contested accounting, defective trusts and wills and other probate litigation issues. Contact our firm to learn more.
There are many factors involved in whether we’re going to take a probate-litigation case. This is a very technical area of the law with a lot of time limits and technical requirements, so we have to look at a lot of things. Mainly, we have to look at the documents that are in question and the relationships between the people. Obviously, the story of what happened and why is very important. One of the other factors that I look at is whether I like the client and whether I can sympathize with them and feel good about representing them. I do that for two reasons. One is personal, but the other is there is always an element in these cases of how does the client present to the judge or the mediator. In other words, are they going to be sympathetic to other people, not just to me?
The Power of Compromise
Probate litigation cases can be lengthy and costly, especially if they spend a lot of time in the courtroom. In this video, Oakland probate litigation attorney Charles Triay describes why most of his clients end up reaching a settlement before going through litigation.
Ninety-five percent of all cases end up being settled with compromise settlement agreements rather than going to trial, and there are very good reasons for that. One is that trials are very expensive. They take a long time. They are somewhat risky because there is no jury trial in California on these types of cases, so you get a judge and you don’t even know who your judge is going to be until the day of trial, and they tend to be winner-take-all lawsuits. Either the amended will is valid and one child gets it all, or the amended will is invalid and all the children split it equally. It’s not like an injury case, where you know you’re going to recover some money, but you don’t know whether it’s going to be this amount or that amount. They tend to be winner-take-all cases, and for those reasons, people often decide to negotiate a compromise.
Welcome to Triay Law Office
Our Oakland probate litigation attorneys have over three decades of experience assisting with a variety of probate litigation matters. In this video, Charles Triay explains the firm’s values, experiences and areas of practice. Contact our firm to learn more.
Charles Triay has been practicing law in California for 35 years. My associate, Yvette Davis, and I specialize in probate litigation matters. That involves will contests, trust contests, accounting disputes, and all manner of other contested-inheritance battles. We practice law primarily in the Bay area, but we do handle cases all over the state of California. If you need legal representation on a contested-inheritance matter, please call us at (510) 330-2203">(510) 330-2203.
What A Probate Attorney Needs to Review Your Case
The most accurate assessment of your probate conflict. Oakland probate litigation attorney Charles Triay suggests bringing any relevant documents, including wills and trusts, along with you during the initial consultation.
If you have the documents and you aren’t happy … or if you can’t get the documents, then you should see an attorney. You should call me. If you have the documents and aren’t happy with them or have a question about them, definitely come see me and let me look at the documents. That’s the first thing I ask for. I want to see the will. I want to see any amendments to the will. I want to see the trust. I want to see any deeds or any other documents that are going to come into play.
What We Are Looking For in a Case
We only accept clients who we strongly believe have a case. We want to help people who are struggling with any probate litigation issue, from undue influence and lack of capacity to creditors’ claims and contested accounting. Watch the video below to learn more about our Oakland probate litigation lawyers‘ priorities when choosing which clients to represent.
One of the things that I look for is a client that I like and sympathize with and can identify with. Obviously, I don’t want to take a case just to make money. I want to feel that I have a chance to actually help that client and accomplish something for them. I do try to find a client that I feel good about representing.
Why Is It Important to Have a Probate Attorney?
Should you handle your probate litigation issue on your own? If you do, you are entering a complex world of red tape, deadlines and documents that is nearly impossible to navigate alone. An Oakland probate litigation attorney at The Triay Law Office can make sure you complete each required step in a timely manner, whether you need assistance with creditors’ claims or a defective trust. Call (510) 330-2203">(510) 330-2203 today to contact our office and learn how we can help.
People always ask me can they handle their own case in “pro per,” or why should they come to a specialist rather than to their family attorney or another attorney that they know. I tell them that would be a big mistake. This is an area that is very specialized. There are many non-obvious laws in California about what is a valid will and what is not a valid will. More important than that, though, there are many traps for the unwary in the law. There are many time limits that are not obvious and that are unique to this area of probate litigation. I’ll give you an example. There are some cases where there is a 120-day time limit for filing your lawsuit. There are other cases where before you file your lawsuit, you have to file a specific claim form in the probate estate and then wait a certain period of time, but not too long, before you file your lawsuit. So there are many pitfalls if you try to represent yourself or if you try to have an attorney that’s not experienced in this area.
What Are Triay Law Clients Like?
When potential clients contact Oakland probate litigation lawyer Charles Triay, they are often in the midst of extremely personal and emotional conflicts with family members and loved ones. Defective wills and trusts, contested accounting and accusations of undue influence require a lawyer with a level head and professional demeanor.
The clients are very emotional and rightly so because they’re involved in disputes with family members and they’ve lost a loved one and they’re fighting about money and they’re fighting with an audience of lawyers and judges, so it doesn’t get much more stressful than that. So it’s very helpful if the lawyers don’t be more emotional than their clients. It’s very helpful if the lawyers can remain professional and calm and to give people good advice along the way.
Winning and Losing Probate Cases
While his office manages to settle most cases before entering the courtroom, Oakland probate litigation attorney Charles Triay does occasionally have cases that go to trial. While litigation might settle the financial details of a defective will and trust, undue influence or creditor claim, it may not erase the bitterness that lingers after a stressful family battle.
A lot of cases do go to trial. I’ve tried many cases and won a lot of them and lost a few of them, so, yes, there are winners and there are losers, but more often than not, there’s a compromise. Sometimes those compromises result in family harmony being restored. Sometimes not. Sometimes the conflicts are too deep and too painful and especially after litigation, so the people settle the money dispute, but the family harmony is irretrievably broken.
Differences Between Will and Contests
Let me talk about will contest versus trust contest. When I first started practicing in this area the contest were almost all will contests and few people had living trusts. That’s really changed over the years. Living trust had become much more popular and prevalent and so most of our contest cases are trust contest cases rather than will contest.
Let me explain what I mean. If you write a will then you can write a new will or you can do an amendment to a will which is a called a codicil. When you do a trust you don’t normally write a whole new trust, you do a trust amendment or sometimes called a trust restatement. The law is the same about the validity that there’s a few technical differences and how they have to be signed or witnessed or notarized or not notarized. The main features about the mental ability required to understand what you’re signing when you sign a will or a trust and the grounds to successfully contest a will or codicil or trust or trust amendment on undue influence grounds are basically the same.
Do They Still Read The Will To Those Affected?
The probate process is something that many people do not quite understand. Oakland probate litigation attorney Charles Triay explains that unlike in movies or television, testamentary wills are typically mailed out to beneficiaries pursuant to state law. If you have questions about probate or believe you your loved one’s will or trust was defective, contact our office to see how we can help.
First of all I want to comment about the “reading of the will.” That doesn’t happen in California or very rarely happens. That’s sort of is a creature of the past or creature from movies and television. In the old days I suppose there would be a conference in the attorney’s office and someone would read the will. I don’t know exactly why no one does that anymore but I have a theory that it can lead fisticuffs and arguments and other violence because there’s always someone who’s not going to be happy. So, that doesn’t happen.
What happens is the document is filed with the court and the copies are mailed out to people. That’s what should happen. Sometimes you have to make a stink before someone will give you a copy of the will or the trust. If you need help with a contested inheritance matter please call me, (510) 330-2203">(510) 330-2203.
Mediate Your Probate Dispute
Some probate cases might be best handled in mediation rather than through prolonged litigation. Oakland probate litigation lawyer Charles Triay is also a certified mediator for will and trust disputes. Contact our office to learn more about our mediation and litigation services.
Yes, I am a mediator. That’s a good question though. Many of the litigation cases are settled in mediation rather than the attorneys negotiating over the phone. I have been trained as a mediator and I do serve as a mediator. I enjoy that work, it’s different than being a trial lawyer. You have to take off your trial lawyer hat and be a neutral and try to help both sides resolve the case.
A common question many people have is what is a defective will, and what can a person do to remedy the problem. Oakland probate litigation lawyer Charles Triay explains the most common defects in testamentary wills. If you need help with a will or trust dispute, contact our law office today.
What makes a will defective? Wills can be defective in two or three ways. The most common way is that they’re not dated or signed. The second most common way is they don’t use language that make it clear that this is a will. We’ve had cases where it’s not clear whether this was just a memorandum who was supposed to get things or whether it was supposed to actually be a will. In other words had the person really made up their mind and this was it, or were these just notes?
We’ve had a similar case or two where the question was, “Was a letter to the lawyer telling a lawyer what to put in a will? Was this a will in and of itself?” If you need an attorney to help you with an inheritance battle, call the Triay Law office at (510) 330-2203">(510) 330-2203.
Where Are Probate Cases Handled?
A common question beneficiaries may have if they have a will or trust dispute is where should a lawsuit be filed? Oakland probate litigation lawyer Charles Triay reviews the issue of jurisdiction for contested wills and trustee accounting cases. If you are unsure whether our California attorney would be right for your potential probate litigation case, contact our office to discuss your situation; we are happy to speak with you.
Probate cases are handled in one of two places. The first place is where the descendant died, the family member who passed away. The second place is if a trust is involved, whoever the current trustee is, the litigation is often brought in the county where they live. For example, if your mother died and she was a resident of San Francisco, but now that she’s died your brother is a trustee but he lives in Los Angeles, the case would probably be brought in Los Angeles.
It doesn’t really matter where the heirs live. I handle cases with heirs that live all over. Currently I have a client in Hawaii whose brother lived in San Francisco and passed away. I’ve got clients all over the state of California, Oregon, Texas, Mississippi, you name it. The common factor is that one their family members lives here or lived here and so the case is tried here.
If you have questions about a potential case, we’d be happy to talk to you. Please call us at (510) 330-2203">(510) 330-2203.
Proving Will Contest or Undue Influence Cases
Evidence for defective will or probate litigation cases is not always a cut-and-dry issue. In this video, Oakland probate litigation lawyer Charles Triay explains that his legal team builds cases based on the accumulation of evidence, including oral testimony of relatives and other witnesses. If you have a question about a potential probate litigation case, contact our law office for our attorneys to review your case.
People ask me how do I prove a will contest case or undue influence case? They’re a mosaic, if you will, or a painting. They’re made up of little bits and pieces. Every once in a while we’re fortunate we find a smoking gun or we find someone who is there and heard the bad guy tell the parent, “If you don’t sign this I’m going to throw you in a nursing home.” Usually it’s not one single piece of evidence. It’s a pattern that has accumulated overtime. We are allowed to use oral testimony both from our clients as to what they saw, what they heard, what they were told. We are allowed to use documentary evidence from medical records, financial records and we talk to everybody. We talk to the nurse. We talk to the neighbor, we talk to the gardener who came over. We get the doctor’s records and we talk to the attorneys because attorneys take notes. We take all these little bits and pieces and try to assemble the picture so that we can show the judge what happened.
How Do You Prepare A Case For Trial?
The process of gathering evidence in a will or trust case, like all civil lawsuits, is known as discovery. Oakland probate litigation attorney Charles Triay explains that his legal team will subpoena documents, speak to witnesses and hold depositions as part of their trial preparations. If you have an inheritance dispute, contact our office. We look forward to speaking with you.
People ask me, “How do you prepare a case for trial?” There are many methods of what is called discovery that are available to an attorney once a case has filed in the court. Generally speaking we’re dealing with a will contest or a trust contest for an elderly relative who has passed away and made a last minute change in their estate plan. We will subpoena the medical records. We will subpoena the file of the attorneys who were involved in preparing the documents. We will subpoena the financial records because we often find that the person who engineered the change in these date planning documents was also taking money from mom or dad during the lifetime. We will also schedule depositions which are face-to-face cross examinations for lack of a better word, under oath with a court reporter. We generally do that for anyone who had contact with the decedent in the last year or so of their lives. That will be family members, neighbors, friends, attorneys, accountants, whoever.
Common Fact Patterns in Will and Trust Cases
A common problem for people engaged in probate litigation may be that they were told one thing by their relatives about a potential inheritance, only to discover the will or trust said something entirely different later. It should be noted that testamentary wills and trusts must be in writing to be valid in California, but oral testimony can be used as evidence in a probate case. For more information about will and trust cases, contact our Oakland probate litigation attorneys today.
I want to talk for a minute about the most common fact patterns in the will contests and trust contest that we handle. First, a little bit of background. In order for an estate plan to be valid in California, it has to be in writing. The court doesn’t want to hear, “Mom told me that I get it all,” and your brother says, “Mom told me that I get it all.” That doesn’t do much for us. That may help if there is a written document. We have oral statements by mom to back it up but by itself without a written document, an oral statement doesn’t carry much weight with the court. We’re almost always dealing with a written document and contesting whether that’s a valid document or not.
If you think you have a potential inheritance case, please call me (510) 330-2203">(510) 330-2203.
What If Someone With Property Dies Without a Will?
Families may not know where to turn if their loved one died without a will, trust or estate plan. If the person owned property and died intestate (the legal term for a person who dies without a valid will), then California state law will determine who inherits what property. These laws can be complicated, if your loved one died without a valid will, contact our Oakland probate litigation lawyers to discuss your legal options.
If someone dies and owns a property and they don’t have a will or a trust, California has a set of laws specifying who gets it and what their shares are. It’s called the laws of intestate succession. They’re fairly complicated. Generally speaking it goes to the spouse and children first, the parents second, brothers and sisters next and then you start going to aunts and uncles and nieces and nephews and on, up and out in the family tree. It’s quite complicated.
In California the inheritance laws treat half-blood relatives the same as full-blood relatives. If someone is your half-brother sharing one parent but not the other, you could still inherit from that person. We do get involved in those of trying to determine who the proper intestate heirs are when there is no will or trust.
What is Probate Litigation?
Our firm handles all areas of probate litigation, including defective wills and trusts, spousal rights, undue influence cases, trust accounting and breach of fiduciary duty. Watch this video below to hear Oakland probate litigation attorney Charles Triay explain more about this type of law and his practice.
I practice in the area of probate litigation. People ask me, “What is that?” The easiest way to explain it is to give some examples of the common types of litigation cases that we handle over and over and over again. The first one is the undue influence case where the elder family member has changed their will or trust at the last minute and made a radical change in who’s going to get the property. That arises in one of two ways. One, where a family member has influenced them and the other where a caregiver, a nurse or other care provider has exerted influence.
Another common scenario involved children from the first marriage involved in an inheritance dispute with their parent’s second spouse. Most of the undue influence cases that we handle involve a last minute change in the estate plan that is a radical change. That happens at a time when the person signing the document is sick, either physically or mentally. Just because someone has a signed document in their favor doesn’t mean that it’s valid.
Deadlines in Probate Cases
Like all civil cases, there are important deadlines that affect a case. If you have an inheritance dispute, speak to our Oakland probate litigation lawyers as soon as possible to ensure you do not miss important deadlines. In this video, Charles Triay reviews the many types of deadlines that may apply to probate litigation cases.
There are a lot of different deadlines. One deadline starts to run from the date of death. There is another deadline that runs from the date that something is filed with the court. There is another deadline that runs from when the executor is appointed by the court which could be at the first hearing or the second hearing. I can’t give you any more specifics without talking about a specific case. There are many deadlines to be aware of.
If you would like a consultation to review your case please contact me, you can e-mail me at firstname.lastname@example.org.
What Side Do You Represent?
Oakland probate litigation attorney Charles Triay offers insight into the types of cases and clients his law office represents. If you have an inheritance dispute, a defective will or trust or breach of fiduciary duty claim, contact the attorneys at our office for legal advice and representation.
I represent both sides in these cases both the contestant and the defendant if you will, often called the respondent in this area of law. I can’t say that I’ve ever represented somebody who exerted undue influence but I’ve represented people who’ve been falsely accused of exerting influence.
Representing both sides does give you a unique perspective on what the other side is thinking and what to expect in the way of tactics and strategies from the other side. We joke around in our office, it’s uncanny we’ll handle a particular case and within a year we’ll get the exact same case but we’re on the other side. It’s almost spooky.
I’m Charles Triay. If you’re involved in a probate litigation case and need representation, please call me (510) 330-2203">(510) 330-2203.
Can I Receive My Inheritance While Litigation is Ongoing?
Oakland probate litigation lawyer Charles Triay addresses a frequently asked question about defective will and trust cases. If you have a probate dispute, attorney Charles Triay has over 30 years experience and is Board Certified as a specialist in estate planning, probate and trust law. Contact our probate litigators for more information about your potential legal options.
People often ask me, boy this litigation is going along for a long time. Can I get part of my inheritance now? The answer is usually no, unfortunately. You can go to firms that specialize in lending against your eventual inheritance, but they charge an arm and a leg. I don’t recommend that. If you can possibly get by without doing that I suggest that you get by without doing that.
As a general rule the estates and trusts are frozen during the litigation. The interesting question there is who handles the assets, who handles the money while the litigation is going on. We generally try to get a neutral professional fiduciary to handle the assets. That’s not always possible. Sometimes one of the litigation parties holds the assets. When that happens we try to make sure they don’t use that money to pay for their attorney’s fees to fight you.
Do You Teach Others About Probate Litigation?
Certified a specialist in trust, estate and probate law by the California Board of Legal Specialization, Charles Triay is a regular speaker and lecturer on such topics to other lawyers and professionals. If you have a contested inheritance case or other type of probate dispute, contact our Oakland probate litigation attorneys to learn more about our firm and the cases we litigate.
I’ve been practicing law in California for 35 years. I participate in giving seminars; both to lawyers and to other professions including professional Trustees and Executors. I also speak to service groups such as Rotary Clubs, Elks, Kiwanis and clubs of that nature.
If you’re involved in a probate litigation case and need representation please call me, (510) 330-2203">(510) 330-2203.
How Do You Prove Mental Capacity to Sign a Will?
Oakland probate litigation lawyer Charles Triay reviews evidence in will contest cases. In a lack of capacity or undue influence case, the mindset and mental capacity of the decedent at the time of the will or trust signing is of paramount importance. Contact our probate litigators by phone or through our online form for more information.
So the question is how do you prove whether someone had the legal mental capacity to sign a will or a trust. That is a combination of a lot of different factors. We want to look at their medical records. We want to talk to the people who were there. We want to know what they said previously. Sometimes people will have said for years about what their plan is. Then if the document is consistent with that, that leads you to believe that they knew what they doing.
Surprisingly there is no hard and fast way to prove that. Even attorneys when they’re having someone sign a will often don’t go through the ritual of telling what day of the week it is, telling you who the President is. They just hold a normal conversation. Hi, how are you? How are you feeling? How’s this weather? That really doesn’t help us much. Once in while the attorney or the family member will get a formal neurological assessment done before the document is signed. But that’s rare; we don’t see that very often.
Undue Influence in Contested Will Cases
There are two common ways to challenge a testamentary will in California: undue influence and lack of capacity. In this video, Oakland probate litigation lawyer Charles Triay discusses how these legal grounds to challenge a will are often interrelated. For more information about contested inheritances, contact our office.
The most common ground for contesting a document in California, an estate planning document, is undue influence. By that we mean convincing somebody to sign a document that they wouldn’t have done otherwise. We also contest documents based on lack of testamentary capacity; in other words, mental weakness. The standard for testamentary capacity in California is very, very low. It is very difficult to prove that someone lacked the understanding that this was a will.
The two concepts of lack of capacity and undue influence are related. Because if someone has a diminished capacity, that is they’re not completely lacking in capacity but they’re mentally weak. Usually as a result of senility or Alzheimer disease, they become more easily influenced. Even in the undue influence cases we do develop what their mental condition was and whether there was any mental weakness or confusion or memory loss.
What are the Different Types of Wills?
Testamentary wills in California do not have to be formal, standard wills with two witnesses at an attorney’s office. In this video, Oakland probate litigation lawyer Charles Triay explains that holographic wills, or handwritten wills, may be valid in California. If your loved one passed away and you believe the will is defective or if you have a question about a holographic will, contact our office to learn about the types of cases we handle.
California recognizes two types of wills. The formal will that we’re all familiar with which is typed and signed and witnessed. In California there are supposed to be two witnesses. Both witnesses are all supposed to be there at the same time and everyone sign at the same time. That’s the standard will.
Unknown to a lot of people California also recognizer handwritten wills. Technically those are called holographic wills. The main requirement is that they be entirely in the handwriting of the person making the will. I cannot write a handwritten will for you and have you sign it. You have to write it all out yourself. Those don’t have to have any witnesses. You end up with some documents that don’t look like wills, such as a letter or just a memo, that somebody wrote on a piece of paper that can act as a valid will as long as it makes it clear that this is what it’s intended to be.
What is A Contested Accounting Case?
Oakland probate litigation attorney Charles Triay discusses how you may request a contested accounting in either a probate administration case or a trust case. For more information regarding estate law or breach of fiduciary duty, contact our probate litigators by phone or online regarding your situation.
Hi, I’m Charles Triay. Another type of case that we handle often are contested accounting cases; both in the trust context and in the probate estate context. The accounting requirements are the same for a probate estate or a trust. The only difference is that with a probate estate the accounting has to be filed with the court. With a trust, the accounting only has to be filed with the court if there’s a dispute about the accounting.
Those arise in two common situations. One is that the family member has died and your brother or your sister is acting as the Trustee or the Executor and years have passed and nothing has happened. The first step is to force them to do an accounting and to try to move the case along to an ending. The second area is the false accounting or crooked accounting if you will. We see a lot of people who when they have money in their hands that they’re managing, even if they’re managing it for family and loved ones, gets sticky fingers. They start using that money for their own benefit and then trying to conceal that. We’ve gotten pretty good at detecting that over the years.
What Is Contingency Fee?
At Triay Law Office, our Oakland probate litigation attorneys are able to take certain inheritance dispute cases on a contingency fee basis. In some cases, the office may have the resources to advance costs of litigation, as decided on a case-by-case basis. Contact our office for more information about attorney fees for probate cases.
The contingency fee is where I take the case on a percentage basis, where the client doesn’t have to pay me as we go along and I get a percentage of what is recovered at the end. Generally on a contingency fee case the client will have to pay the out of pocket expenses for court filing fees, the deposition fees and the subpoena fees.
Occasionally, I will reach an agreement with the client where I advance those as well so the client doesn’t have to pay anything at all on an ongoing basis. If I do that then I have to raise the percentage that I charge on the percentage fee. I think is pretty standard for attorneys in this field. However, as I said there are many firms that won’t take cases on contingency because they just can’t do it economically.
If you need an attorney to help you with an inheritance battle, call the Triay Law Office at (510) 330-2203">(510) 330-2203.
Can A Trust Be Changed After Death?
Oakland probate litigation attorney Charles Triay discusses the rights some beneficiaries may have to change a trust after the trustee of a trust passes away. In order for a trust to be amended after death, certain factors must be met and a judge must sign off on these changes. If you have questions about your ability to alter a trust after the death of a trustee, speak with the Oakland probate litigation lawyers of the Triay Law Office today.
Another interesting question arises concerning defective trusts, but it arises in a different way. In other words, the question is not whether the trust is defective, because the rules for trusts are a little looser and more liberal than the rules for wills. The question is, “Can the trust be changed after the death?” The answer is, “Yes, under certain circumstances.” It’s a little too complex to describe in 25 words or less, but generally speaking, if all the beneficiaries agree that they want the trust to be changed, you can go to court and get the judge to sign off on that and change the trust even after the death. If there has been a change in circumstances, for example, the tax law changed and the trust never got updated, you can sometimes go to court and get the trust changed on that basis.
How Did You Become a Specialist in Probate Law?
Oakland probate litigation attorney Charles Triay talks about how he received and maintains his certification as a specialist in the legal area of probate law. As a probate law specialist, he is required to keep up-to-date on probate law changes and regulations through continuing education as well as seek recertification every five years. The Triay Law Office is able to answer any of your questions about defective wills and trusts when you schedule a consultation with our firm.
To become a certified specialist in any area, including probate, you have to do three things: You have to get letters of reference from experienced attorneys and judges attesting to your ability. You have to fulfill certain practice requirements about how many cases of each type you’ve handled and attest to that. You have to also pass an exam. Then after you become a certified legal specialist, you have to participate in continuing education and stay up-to-date and stay fresh on current law and get recertified every five years. If you would like more information about probate litigation or probate in general, please visit my website at triaylaw.com.
The Psychology of Lawsuits
Oakland probate litigation attorney Charles Triay talks about how it can be difficult to predict exactly how a case will turn out because of the high level of emotions that are usually involved. He explains how cases tend to require time for each party to deal with their emotions about the situation before the case can be handled in a professional manner. The attorneys of the Triay Law Office have years of experience professionally handling probate litigation, and are available to speak with you about your legal needs during a free consultation.
I want to talk for a minute about the psychology involved in lawsuits. People often come to me and tell me, “Oh, this case will settle early.” They say that either because they believe the other side knows that the other side is guilty and is afraid to be exposed and so they’ll want to settle early, or they think the other side is friendly and amenable and will want to settle early. I don’t see that happen very often for either of those two reasons. Most of the time, people are upset. They feel like they’ve been accused of wrongdoing. There’s a lot of money on the table. They know what they know or what they think they know. They don’t know your version of facts. In my experience, it’s unusual for cases to settle early. There has to be this period for people to calm down, for people to do the exploration or the discovery to find out what the facts are and what the other side is going to say and what evidence and facts and witnesses they have. Then people will start to get more reasonable and analyze the case in a more business-like way.
Does The Spouse of the Deceased Have Rights?
Oakland probate litigation lawyer Charles Triay discusses his work in probate litigation involving individuals dealing with marital right issues concerning the estates of deceased spouses. He explains that since California is a community property state, the law may allow for you to receive property rights to your deceased spouse’s estate. If your spouse has died and you have questions regarding your spousal rights, speak with us today.
Many cases we handle involve the rights of the spouse of the deceased. The main area that comes into play is whether a particular asset is community property or separate property or partially community property or partially separate property. California is one of the few community property states in the western U.S., and so we have a unique set of laws that gives spouses community property rights. I’m Charles Triay. If you’re involved in a probate litigation case and need representation, please call me, (510) 330-2203">(510) 330-2203. You can find out more information about our law firm and the kind of cases we handle.
Do I Have Rights If I Was Not Included in My Spouse's Will?
Oakland probate litigation attorney Charles Triay discusses what happens when a spouse is not included in a pre-exisiting will that was written prior to getting married. The law may provide you with the ability to still inherit some of property owned separately as well as community property you and your spouse acquired while married. If you need legal assistance to uphold your spousal rights, speak with our Oakland probate litigation lawyers for more information.
Another area of spousal rights that most people don’t know about is that if a person writes a will before getting married and the will doesn’t say, “I’m planning on getting married to so-and-so,” and then they get married and don’t change the will, the new spouse is entitled to inherit a share as if there were no will, in many circumstances. As always with the law, there’s always exceptions. You can’t state things as a blanket rule, but we get this case once or twice a year where a spouse comes in and says, “My husband died. He has an older will from before he married me and it leaves everything to his kids. Am I out of luck?” Generally, the answer is, “No. You’re not completely out of luck. You’re entitled to inherit a portion of the separate property and all of any community property that was acquired during your marriage.”
What Do I Do if Someone Who Owes Me Money Passes Away?
When a family member, friend or acquaintance passes away without repaying the money he or she owes you, you may have the ability to file a lawsuit to gain this debt. It is in your best interest to speak with an Oakland probate litigation attorney as soon as possible about your situation, and to learn if you are entitled to seek money from the estate of someone who has passed. Contact our Oakland probate litigation lawyers today.
If someone who owed you money died, there are very specific steps and very strict time limits that apply and it is possible to sue their estate or to sue their trust or to sue the heirs who inherited their money, but it’s very difficult and you definitely need the help of a lawyer. It’s actually harder to collect from a trust of someone who died owing you money, but it’s still possible.
Does California Legally Recognize Videotaped Wills?
As Oakland probate litigation lawyer Charles Triay discusses in the following video, the state of California does not uphold wills that are solely videotaped. However, if a videotaped will correlates with what is outlined in a written will, the written will is what will hold validity in the eyes of the law. Our Oakland probate litigation attorneys can offer experienced legal representation to those dealing with defective wills. Schedule a consultation today with the Triay Law Office to learn more about your rights.
The question is: “What about a videotaped will”? California doesn’t recognize a videotaped will, but the way that usually arises is that in connection with a written will, there will be a video done, but if it’s just a video where someone is saying, “When I die I want to leave my house to my son, Bob,” then I don’t believe that is a valid will.
Why is Probate Litigation Expensive?
Our Attorneys Provide Services On Contingency Or Hourly Fees
A number of factors go in to why probate litigation can become expensive, such as the time and expenses needed to adequately prepare a case. However, there are many probate matters that may benefit from retaining legal counsel to uphold your rights and the last wishes as outlined in your deceased loved one’s will or trust. The Triay Law Office in Oakland is available through an hourly or contingency fee basis, whichever better fits your needs. Call attorney Charles Triay today at (510) 330-2203">(510) 330-2203 for more information.
Probate litigation is expensive for two reasons. The first reason is that there’s a lot of work that’s required to prepare a case. Because it is kind of like a mosaic or a painting, where you’re assembling lots of little different bits and pieces to make the whole picture, you have to subpoena different records from different sources. You have to take depositions from many people. You have to hire expensive expert doctors and expert lawyers to give expert opinions about whether someone was competent or not, or whether the document was executed properly. That’s one reason: the amount of time and out-of-pocket expenses involved.
The other reason is that the courts move very, very slowly. Part of that’s because of the budget cuts in California. If I were to file a petition today, the first hearing would be two months from now, and if it got postponed, it would get postponed for another month—30 days gets added, 60 days gets added, another 30 days gets added. Before you know it, a whole year has gone by.
Can Social Media and Emails Be Used in Probate Litigation?
With the continuing advancements in technology and the important role it plays in our daily lives, the law has also grown to utilize these methods of communication as strong pieces of evidence. In this video, attorney Charles Triay explains how California law permits lawyers to subpoena, or issue a written order to obtain, emails and other electronic documents to support probate law cases. If you are involved in probate litigation and need experienced legal counsel on your side, speak with the Triay Law Office to see how our firm may be of assistance.
One of the interesting things that’s come up recently is social media and email. People don’t write letters as much as they used to, and they don’t even use the telephone as much as they used to. They communicate by email. California has passed what’s called, for short, the E-discovery Act, recently, which allows us to subpoena email history and find out what people have been saying to each other in writing about the case.
We subpoena the emails to find out what people were saying at the time, what they were saying about how confused Mom was or how manipulative Brother has been. People don’t think about that when they’re sending those emails, but they’re preserved, and we can often get them and they often become very important in the case.
Can Adopted Children Inherit the Estate of Their Biological Parents?
Probate lawyer Charles Triay recalls in this video an interesting contested trust case in which he represented the biological son of a man who may have suffered undue influence when drafting a trust upon his death. If you need assistance amending a defective trust or will after a loved one’s passing or require effective representation in probate court, reach out to our attorneys who have over three decades of legal experience.
One of the interesting cases with some very unique factors that I handled just a couple of years ago involved a gentleman who was a patent attorney for Chevron, and he lived over on the peninsula. He had been married once, when he was very young, to a woman from England. While she was pregnant, they had a falling out and she went back to England. She eventually gave birth to the child, a son. He was eventually adopted by a subsequent husband. The gentleman who died never remarried, never had any children. He never had a will, which, believe it or not, that’s not uncommon, even for attorneys.
He amassed quite a bit of property buying real estate on the peninsula in the 50s and 60s. When he was on his deathbed, his accountant and his property manager kept saying, “You’ve got to write a will. You’ve got to write a trust.”
They arranged to have an attorney come to meet with them. The attorney met with them, and said, “Who do you want to leave it to? Do you want to leave it to your son?” “No.” “Do you want to leave it to your nieces and nephews?” “No.” “Well, who do you want to leave it to?” “I don’t know. I don’t care.” The attorney went on and on with him, and finally said, “I know that you live on a street and there’s a park, a public park at the end of the street. Do you want to leave it to the parks?”
The answer was something like, “Yeah, whatever.” The drafting attorney said, “Well, that’s the most positive thing that I’ve heard so far.” The drafting attorney went and wrote up the trust to leave it to the city park system. Well, it turns out that the attorney was on the parks commission for one of the adjoining cities. He had an indirect interest in writing the will and the trust in that way.
He came back a few days later with the documents prepared. According to his own testimony, the gentleman was lying in his bed in the fetal position but could communicate with grunts. He read him the document. The gentleman grunted, and with assistance, grasped the pen and signed the document.
We ended up with a three-way battle over who was to get the estate. On one side was the city representing their park’s district. On the other side was the nieces and nephews, who lived here in Canada, and in Las Vegas and in other places in the western U.S. My client was his biological son. Unknown to a lot of people, adopted children can inherit from their biological parent under certain circumstances. One of those circumstances is that they lived with the biological parent at some point in time. The law doesn’t specify how long or at what age.
This child, when he was 18, had come and stayed with his biological father for two weeks. When the child was young, like one year old, and the parents were going through a divorce battle back in England, the father had stayed in the rooming house run by the mother. All three of them were under the same roof at that time.
The case was difficult, and so we ended up settling it with all three sides getting a substantial amount of money. I thought that was an interesting case.
What happens if an Estate is Missing Heirs?
Individuals who handle estates have a duty to make a diligent effort to find any missing heirs, so that these heirs receive any inheritance left to them. However, as our attorney discusses in this video, oftentimes those in charge of estates do not perform the search as thoroughly as they should. If you are involved in an estate that is missing heirs, talk to attorney Charles Triay who is a specialist in contested probate litigation in California.
We do get involved in cases with missing heirs. There’s a couple of interesting features to those cases. First of all, the person who’s handling the estate is required to make a diligent effort to locate missing heirs. These are generally cases where there is no will or trust, and so you’re trying to find cousins or nieces and nephews.
There is usually a financial incentive to not look very hard, and so oftentimes the people in charge of the estate really don’t look as hard as they should. There are firms in California that specialize in locating missing heirs and signing them up for a percentage, but there are strict laws governing that heir hunter or heir finder practice.
Specialists in California Probate LawOur probate litigation lawyers focus mainly on disputed matters in the probate court: arguments on whether not a will is defective or affected by undue influence; financially abusing elders through misinformation; a professional failing to perform lawful, fiduciary duties. The Triay Law Office, which consists of myself and my associate Paul Epstein, specialize in probate litigation matters. We don’t write wills and trusts, but we do litigate contested wills and trusts and all other manner of inheritance battles. I like this area of the law because it involves not only interesting legal questions but dramatic family stories. If you need an attorney to represent you in an inheritance battle, please at (510) 330-2203">(510) 330-2203.
Should I Have Multiple Lawyers For a Multi-State Probate Case?If a probate matter such as a will and trust dispute or claim of undue influence involves parties in multiple states, you will likely not have to worry about hiring attorneys in each state. When litigating multi-state cases, Charles Triay can make arrangements with lawyers outside of the northern California area. I usually handle it for you and find an attorney for you in the other state. Generally speaking, the main action occurs here and they wait to see how it turns out here before proceeding in the other state. It’s not fought simultaneously in two states at the same time.
Costs for Oakland Probate Litigation Attorneys at Triay Law Office
We handle these cases in two different ways. The first way is on an hourly fee, where the client pays every month based on the amount of time that’s spent on their case, and that fee is payable no matter how the case turns out.
Many clients wonder how much it costs to hire an attorney.
The second way is what’s known as a contingency fee or a percentage fee. Most people are familiar with that in connection with personal injury cases, and those types of fees, the attorney gets paid a percentage of what the attorney recovers for the client, and if the attorney does not recover anything for the client, the attorney does not receive any fees.
Generally speaking, the fees will be less if you pay on an hourly basis. However, these cases are very expensive to prepare and take to trial. Even if you settle the case, they’re very expensive to prepare and get to a decent settlement, and most people frankly just don’t have the money to pay the kind of fees that it takes on an hourly fee basis.
As a result, we end up handling more than half of our cases on a contingency fee basis, and that allows the client to pursue the case without having to lay out a larger sum of money and risk that money on the outcome of the case. The reason that we as a smaller firm can handle cases on contingency where the larger firms can’t is because we’re smaller, we have lower overhead, and we also have a balance. We strive to maintain about a 50/50 ratio of hourly fee cases and contingency fee cases. The hourly fee cases help us pay our secretaries and pay our rent and pay our costs, and that allows us to pursue the contingency fee cases.
What if a California Will is Not Technically Valid?
In many states, the probate courts will hold a will to every law as written. However, in California, judges have the leeway to let some technicalities slide. California, unlike most states, has what’s known as the Harmless Error Rule with regard to wills. What that statute says is that if the will does not meet all of the technical requirements, such as if it only has one witness instead of two witnesses on a formal will, the judge can relax those technical requirements and recognize it as a valid will anyway. A lot of people don’t know that. If you have any doubt about whether a document is a valid will or not call us at (510) 330-2203">(510) 330-2203.
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