The attorneys in our Family Law and Probate Department practice in all areas of probate and trust litigation.
- Probate and Trust Administration including the distribution of assets
- Conservatorships and Guardianships for relatives who cannot care for themselves and their affairs
- Initiating and Defending Against Will and Trust Contests including the suspension or removal of and the compelling of accountings by Fiduciaries
Our Firm is also uniquely specialized in Crossover Matters between probate and family law, services that most Estates and Probate attorneys and firms cannot provide.
Probate and Trust Administration
Probate is the legal process of transferring one’s property at death. The probate court determines whether a decedent’s Will is legally valid, and how their debts are to be paid and their assets are to be distributed according to the desires expressed in a Will.
Our firm handles all types of probate administrations. We represent executors, administrators, creditors and beneficiaries, depending on the clients needs and desires.
Although the process of probate can take between 6 months and a year to complete, and despite the fact that the procedures of the Probate Court are highly technical, with the assistance of an experienced attorney, the problems of probate can by eased and often eliminated. And, in most situations, the fees paid to the attorneys are set by the Probate Code and are paid from the decedent’s estate – so the client does not have to pay attorney’s fees “out of pocket.”
Conservatorships and Guardianships
The attorneys of the Firm’s Family Law and Probate Department represent family members, friends and professional fiduciaries in obtaining and maintaining Conservatorships and Guardianships.
Conservatorships involve court proceedings to appoint a family member or a friend (or in some instances, a professional fiduciary) to make the financial and/or health decisions for an individual who no longer has the capacity to do so for him or herself. Conservatorships are established by the Probate Court to assist individuals who cannot provide for their own nutrition, care and shelter; who cannot manage their own finances or resist undue influence; or who will not accept voluntary assistance to protect themselves.
For many families, a conservatorship can be extremely helpful because it provides protection against financial and physical abuse by requiring court monitored accountings and supervision.
In all conservatorships, it must be established that the party does not have the capacity to care for him or herself, or cannot manage their own finances. In all conservatorships, then, the testimony of a mental health professional is required to establish the party’s incapacity. Very few attorneys have the dual backgrounds in Law and Clinical Psychology that David Glass, the Chair of our Family Law and Probate Department, has acquired.
A guardianship is similar to a conservatorship but apply only to persons under age 18.
Will and Trust Contests
Sometimes, the validity of a Will or Trust is not clear, and the Probate Court must conduct extended evidentiary hearings to determine the validity and applicability of a presumed Will or Trust.
In other situations, the fiduciary appointed to administer a Will or Trust is not properly meeting their obligations regarding the use, accounting, or distribution of assets. We are particularly skilled at handling claims for breach of fiduciary duty, beneficiary disputes, and undue influence claims.
Not all trusts and estate attorneys have the litigation experience needed to handle contested Probate Court matters. The attorneys of ERL&P’s Family Law and Probate Department have years of litigation experience and have handled all forms of Will and Trust Contests before the Probate Court, including experience representing either the fiduciary or the contesting parties.
When a party who has been found to be incapacitated is also a party to a dissolution of marriage proceeding, his or her attorney needs to be equally versed in the practice of Family Law and Probate Litigation. These matters can arise first in the dissolution proceeding, where a divorcing party becomes incapacitated, or in the probate court proceeding, where a party who is subject to a conservatorship is being divorced by his or her spouse.