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I have more than thirty years of experience in the area of trust litigation, so it is only natural, in this preliminary segment, to discuss the basic procedural concepts involved in probate litigation involving trusts in California.
Establishing a trust is by far the preferred vehicle for the transfer of assets upon death. As the general public has gained an understanding of the advantages of a trust over a will, the widespread and increased use of a trust for estate planning has inevitably resulted in an increase of litigation involving trusts during the lifetime of the settlor as well after the settlor’s death.
The administration of a Trust, although designed to avoid probate court involvement, may still require court intervention for various reasons such as contesting the validity of the trust; requesting instructions from the court to assist in the interpretation of the trust; addressing trustee’s breaches of the trust by the trustee; or compelling the trustee to render accountings. A recent example is the litigation involving Donald Sterling’s trust which involved, among other issues, the effect of Mr. Sterling’s attempted revocation of his trust to avoid the sale of the Los Angeles Clippers by his wife, the successor trustee.
Although a trustee may be involved in litigation with third parties, if the dispute does not involve the internal affairs of the trust, the litigation may be addressed in a civil court. If the dispute involves the internal affairs of the trust, the probate court has exclusive jurisdiction over the dispute. In this article, I focus on the general procedural aspects of litigating in the probate court.
Trust litigation generally follows the same rules of procedure as civil actions. However, the California Probate Code provides specific rules which are significantly different and which govern litigation before the probate court. For example, a civil action is commenced by the plaintiff filing a complaint and issuing a summons. The defendant generally files an answer. The Probate Code, however, provides for a “petitioner” filing a “petition” and the “objector” or “respondent” filing a pleading generally entitled “objection.” In some cases, a summons may be required to be issued and served on the person whose interest is affected; but in most cases, the probate court acquires jurisdiction by mailing notice of hearing to the affected parties.
Another significant difference is that all pleadings before the Probate Court are required to be verified. One of the reasons is that the Probate Code provides that the court may consider a verified petition, and absent objections, may grant the request based solely on the verified petition without further testimony. Consequently, it is critical that an objector appear at the initial hearing and inform the court of any objections. The court may allow the objector additional time to file written verified objections and may continue the hearing for that purpose. Alternatively, an objector may file the written objections prior to the hearing.
Once the pleadings, the petition and objections, have been filed and the dispute has been identified, the probate court, especially in Los Angeles, encourages voluntary mediation by the parties to resolve the dispute. The court encourages the parties to mediate their dispute, especially since mediation is often effective to resolve disputes. Los Angeles has a “free” mediation program. The mediators, who are randomly assigned, are typically attorneys who volunteer three (3) hours and charge the parties for any time in excess of the three hours. Alternatively, the parties may select a private party to mediate. Many professional mediators claim a ninety percent (90%) success rate in resolving disputes. Mediation relieves the trial calendar of the court and generally saves the litigants legal expenses.
In Los Angeles, the courts may allow sixty days or more, to complete mediation. The court will schedule a post-mediation status conference so the parties may report the results of mediation. If the mediation is successfully, depending on the terms of the settlement and the affected parties, a petition to approve the settlement agreement may be filed and set for hearing. Often, a petition to approve the settlement agreement is not required to be filed.
The Los Angeles probate courts will not schedule a trial date until all discovery by the parties is completed. If the parties have not completed their discovery, the court will grant a reasonable time to allow the parties to complete their discovery. Discovery in probate is governed by the same rules of procedure as in civil actions.
Discovery is the process whereby each party may request the other party to provide all information they possess regarding the dispute. Discovery may be in the form written interrogatories, requests for admissions, depositions, requests for production of documents, and expert witness depositions. Proper discovery is critical. Trial is not a game of surprises. Each party should know the opposing witnesses, documents and the testimony each witness will give at trial. Trial is a well prepared presentation based upon the information collected during the discovery process.
The importance of the facts and information is determined by the application of the law. Legal research and analysis is conducted by the attorney to determine the relevance of facts and information to be introduced at trial. Thorough investigation of the facts and legal research to determine the applicable law are indispensable.
Once the discovery is completed, the court will schedule a trial date. The trial date will depend on the estimated length of the trial and the court’s calendar. The Los Angeles probate court may schedule a short matter (less than three or six hours, or one or two afternoons), relatively soon. Longer matters will be scheduled depending on the court’s trial calendar ability to accommodate the estimate time. Depending on the trial calendar, trial may be set within three or six months later.
Although preparing for trial begins the moment we are retained, the process intensifies as we investigate, conducting discovery, and organize the evidence in a compelling presentation for trial.
My recommendation when selecting an attorney is to look at his experience in probate litigation, determine comparable fees, and find someone who has a good reputation and is familiar with the judges and courts in your area.