Attorneys’ Fees in Trust and Estate Litigation

The death of a loved one is always a tragic event, and putting things in order after the decedent’s passing can often be stressful and overwhelming for those left behind. Defending or prosecuting estate and trust claims in Los Angeles requires a proficient attorney experienced in probate law, but compensation of attorney’s fees is often a difficult proposition during this time. Fortunately, there are provisions in California law that offer some assistance, and competent lawyers at The Boesch Law Group and elsewhere, when situations like these arise.

Following the death of a parent, grandparent, spouse, aunt, uncle or other close friend or family member, the person named in the will is appointed by the Probate Court as the personal representative of the deceased’s estate. The personal representative is responsible for carrying out the wishes of the deceased as expressed in the will. If the decedent has handled his or her estate planning by creating a trust, the appointed trustee can handle the trust’s affairs without Court appointment.

It is not unusual for another relative, friend, or beneficiary to feel dissatisfied by his or her inheritance or lack of mention, and to file claims against the estate or trustee. The contestant may argue, among other things, that the decedent was physically or mentally incompetent at the time he/she signed the estate or trust documents, that he or she was unduly influenced to sign the documents, that documents were the result of fraud, duress, or mistake, that the document at issue was later amended or revoked, or that the personal representative or trustee simply is not carrying out the decedent’s wishes.

In the event of a conflict, the aggrieved beneficiary and the personal representative must retain experienced attorneys to defend their positions. If they cannot afford to pay the attorneys’ normal hourly rates, they must find an attorney who is willing to accept the case on a contingency or deferred payment basis.

A trustee typically can use the trust assets to defend the trust. For the Court-appointed personal representative, compensation due to an attorney may be advanced by the personal representative or paid out of the estate’s assets once the conflict has been resolved. If the personal representative advances the attorneys’ fees, he or she may be entitled to reimbursement out of the estate proceeds. If the attorney has agreed to accept a deferred payment, the amount due to the attorney may be paid directly to him or her at the end of the case, once the estate’s funds become available for distribution. An attorney may represent a personal representative on a contingent fee basis if 1) the attorney and the client enter into a written fee agreement; 2) the Court approves the agreement; and 3) the Court determines that the agreement is fair, reasonable, and to the advantage of the estate. California Probate Code § 10811(c). An attorney may represent a claimant against the estate or trust on a contingent fee basis without Court approval.

Attorneys’ fees can be paid out of the estate whether the litigation was filed before or after the Court admits the will to probate. Additionally, the Court may award attorneys’ fees even if the lawsuit was settled before trial, or even if the contestant ultimately wins the case. In the latter case, neither the representative nor the estate is liable for the contestant’s attorneys’ fees.

At The Boesch Law Group, we are sensitive to the difficulties faced by our clients in addressing the death of a loved one. Our experienced attorneys understand the emotional and financial toll caused by estate and trust litigation. We make it a priority to provide the quality, sophisticated, vigorous legal advocacy that our clients deserve, while allowing for the flexibility so often required when it comes to the payment of attorney’s fees under such circumstances. If we can be of assistance to you during this difficult time, please contact us to schedule a consultation.