It has recently come to my attention that not everyone is accustomed to working with lawyers as part of their daily lives. That’s a shame since we are so wonderful to be around. Us lawyers are used to working with and around other lawyers, so we sometimes forget that not everyone is accustomed to our ways. But if you haven’t worked with a lawyer before, what should you expect when you hire a lawyer to handle a Trust or Will dispute for you? Here’s some idea of what your experience should look like:
1. The Consultation
First, you need to have a meaningful consultation with the lawyer to evaluate your case. By meaningful, I mean giving the important facts to the lawyer so he or she can properly evaluate your case. Don’t give too many facts, but don’t give too few either. You may think that every fact of your case is important—it isn’t. Well not to the legal analysis anyway. That’s not to say what you are thinking and feeling are not important—they are. But a legal analysis is a different animal that looks only to certain facts…not ALL the facts.
Once you have the facts out, the lawyer should discuss your potential claims and the likelihood of success (the good), any downsides, potential defenses or counter suits that the other party may file against you (the bad), and the costs of moving forward into litigation (the ugly).
2. Starting the Lawsuit
Once you approve moving forward, then the necessary petition hould be prepared (usually takes about a week or two—not a month or two), filed with the Court and you will get your first hearing date. Nothing happens at the first hearing date, it’s just a status conference for the court to determine who is objecting.
Your lawyer should then start drafting and serving written discovery requests, seeking whatever evidence you require to prove-up your petition. We like to have a discovery plan written out so we know what discovery needs to be conducted. Sometimes we only need to serve some simple requests to the opposing party, sometimes we need subpoena's, sometimes it's both. Plus there are usually depositions to take. All this discovery can easily take 3 to 6 months, or more, to complete. And then the opposing party will likely serve you with discovery, which should be responded to timely by your lawyer.
4. Expert Witnesses
Next comes the expert witnesses. In most Trust and Will disputes there is an argument as to the capacity of the decedent. An expert witness is required to testify in Court on the decedent’s capacity.
At some point, a trial date is requested from the Court. If you file your Trust contest in Los Angeles County, then the timeframe to get a trial date will be much longer than one filed in Riverside or San Bernardino Counties. All of our California courts are backed logged due to the budget crisis, but Los Angeles County is one of the most impacted.
6. Mediation and Settlement
Usually the Court inquires, and sometimes insists, that the parties go to mediation to try to settle the case before trial. Most cases do settle before trial—that is very common. So a mediation can be scheduled at some point to try to reach a resolution.
All told, a Trust or Will dispute can take between 1 and 3 years to complete if it goes all the way to trial.
This is just a general overview, there can be any number of issues in a case that would change the general information set forth above. But hopefully this gives you some idea of the process, and what to expect from your lawyer.