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Can You Pay for Probate Litigation on a Contingency Basis?

Were you left out of a will or trust even though you were the decedent’s rightful heir? You may be looking to contest this document, but how can you do so without the funds needed to pay your attorney?

In many cases, a contingency fee solves this problem. A contingency fee is a percentage (typically 25-40%) a client pays of their favorable settlement. In other words, this arrangement requires a client to pay their attorney only if they win. What a client pays in contingency fees is higher than the attorney’s hourly rate because of the risk the attorney takes by working on a case without guaranteed payment.

Generally, predicting how evidence will come together during probate litigation is a serious challenge, so contingency fees for a probate case are rare. After all, much of the information needed for the case would come from one key witness: the decedent. In a personal injury case, on the other hand, a person who was catastrophically injured by a drunk driver would likely have no problem finding an attorney who will work for a contingency fee.

A probate case that can likely be paid with a contingency fee is one that has clear and convincing evidence of a path to victory.

You may have such a case if:

  • You have comprehensive details about the real estate. Some prospective heirs contest a will or trust with little information about the value of the decedent’s property. Knowing the address of a home or building, for example, can make a significant difference in your case, because the objective value of the property will be public information.
  • You had a close and ongoing relationship with the decedent. Your testimony will carry greater weight if you have evidence of ongoing contact with the decedent in recent months or years.
  • Very little time has passed since you received notice of the will or trust. Under California law, you have only 120 days after receiving notice to formally object to a trust. This is one of California’s shortest statutes of limitations. Generally, you will have a higher likelihood of obtaining representation on a contingency-basis if your attorney has ample time to evaluate and build your case.
  • The will or trust does not authorize the opposition to use the decedent’s funds for litigation or attorney fees. Often, the owner of an estate will include language in their will or trust authorizing use of their funds for the cost of probate litigation. If the defender of the trust has these funds at their disposal, your likelihood of overcoming their defense will decrease.
  • You have documented evidence of the decedent’s mental incapacitation. Invalidating a will or trust by proving mental incapacitation is difficult, especially since you most likely will not have access to the decedent’s medical records until the litigation process has begun. Your personal anecdotes, unfortunately, will likely not suffice. Similarly, proving that the decedent was subject to undue influence will be a challenge, since undue influence typically occurs behind closed doors. If you have clear and sufficient evidence of undue influence or mental incapacitation, you have a greater likelihood of success and, therefore, of paying on a contingency-basis.

Every case is entirely unique. While some cases reasonably warrant a contingency-fee, you may end up paying less if your attorney charges by the hour. With qualified legal support, you can obtain a thorough assessment of your situation and determine which path is most appropriate for your case.

Contact the Law Office of Mitchell A. Port Today

If you are planning to contest a will or trust, our firm understands your need to do so in an efficient and cost-effective manner. We will closely evaluate any and all relevant evidence to determine whether a contingency fee is possible for your case. No matter your situation, our goal is to provide exceptional service at a reasonable cost.

Learn more about what Attorney Port can do for you by scheduling your free phone consultation or calling (310) 526-3433 today.