Laguna Beach Probate Litigation Attorney

Home | Laguna Beach Probate Litigation Attorney

Laguna Beach Probate Litigation Lawyer

Laguna Beach Probate Litigation Attorney

Experiencing the loss of a loved one is a heavy and emotionally trying time in your life. The grief you feel after their death can be all-consuming and debilitating, but the trauma will increase if there are any issues with your loved one’s estate transfer. If there are complications during probate, you may be facing a difficult probate litigation process to solve disputes involving the estate.

Whether you are an executor, beneficiary, or interested party, preparing your case for probate litigation can be a daunting task. If your case is handled improperly, the decedent’s inheritance may not be distributed according to their wishes.

Probate Litigation in Laguna Beach

Finding the right attorney to handle your probate litigation case can be stressful. You must choose a skilled Orange County attorney that you can trust with such an important undertaking. Davis Toft was founded over 20 years ago as a full-service civil litigation and transactional law firm serving Laguna Beach and the surrounding areas.

We have represented clients in many different situations, such as:

  • Trial in state and federal courts
  • Arbitration and mediation proceedings
  • Private and business negotiations
  • Estate planning

We take the time to listen to your case and understand your perspective before we craft a plan for your probate litigation case. Our strong track record shows our knowledge and skillfulness with the law, and our large number of repeat customers instills trustworthiness. Our clients range from individuals to Fortune 500 companies; we treat each client with the same level of care and respect. Regardless of the net worth of your case, our intent is to make you feel like you are our sole focus for the duration of our professional relationship.

What Is Probate?

Probate is the legal process required by state law to settle a deceased person’s estate. Beneficiaries cannot simply take what they believe is theirs following a loved one’s death. Probate makes the inheritance process more organized by providing a legal guide to property transfer and settling the decedent’s debts. Though some assets and property do not need to be settled in probate court, anything that was directly in the person’s name at the time of their death could potentially apply to probate. Both tangible and intangible property can be affected by probate. This can include, but is not limited to:


  • Real estate
  • Vehicles
  • Jewelry
  • Furniture
  • Electronics
  • Artwork
  • Contents of a safe deposit box


  • Interest in a business
  • Money in checking or savings accounts
  • Copyright
  • Stocks

Typically, probate is filed for by the executor named in the will, and they will continue to oversee the probate process until it is completed. In some cases, probate can be expedited, but this is not always a possibility. In cases where the will cannot be produced or there is no will, a surviving spouse or adult child will usually have priority in becoming the administrator of the estate. The executors and administrators of an estate can consult with a probate attorney if they need legal advice or assistance.

Probate is the default process for handling an estate and is typically required after someone passes away. Some examples where probate would likely be required are:

  • There is a handwritten will, or the will has unclear instructions.
  • The decedent has debts like mortgages, tax obligations, or loans.
  • The property includes real estate not co-owned by another person.
  • The estate value is greater than $184,500.
  • A minor was named as a beneficiary without a conservator or guardian.
  • The will is being contested.

Though probate is a legally required process, there are some situations where it can be avoided.

  • Assets placed into a living trust are not under the probate court’s purview.
  • Jointly held property will typically transfer to the surviving owners.
  • The person’s total estate value is less than $184,500.
  • Identifying beneficiaries for certain accounts, like bank accounts, will allow them to bypass probate.

When Is Probate Litigation Necessary?

Most probate cases will not involve litigation. Probation litigation is a claim against the executor, administrator, or a third party filed by a beneficiary or heir. The purpose of the claim is to obtain a beneficiary’s or heir’s rightful inheritance. The person filing for litigation may be contesting the will. There are several potential reasons for this:

  • There is a suspicion that the signature on the will was forged by someone who was not the decedent.
  • The decedent lacked a sound mind when they signed the will, as they may have suffered from dementia, senility, or other mental health conditions.
  • The decedent was intimidated or unduly influenced to sign a will they did not want to.

Probate litigation can also be filed by an executor, administrator, beneficiary, or heir to reclaim property that belongs to the probate estate. It can also be used to request that the court rule on whether the executor or administrator acted appropriately. If there is no appointed executor or administrator, and the family cannot agree on someone to fill this role, probate litigation can be used to identify the best person for the task.

Distrust of the administrator or executor is a common reason for instigating probate litigation. The role of an executor or administrator is vital for the probate process, which puts them in a great deal of control over the assets and property. Their duties include:

  • Contact beneficiaries and ensure that they each receive their portion of the estate, as indicated in the will.
  • Locate and document any assets of the decedent, then keep them safe until they are distributed.
  • Get approval for the will by applying for probate.
  • Wrap up financial affairs by paying off any creditors, notifying banks, and contacting the social security office, if necessary.

Misconduct, lack of communication, or failure to act on the administrator’s or executor’s part can engender distrust from other parties. Misconduct on the executor’s part that can require probate litigation can include:

  • Failing to respond to beneficiaries or provide them with a copy of the will
  • Delaying the administration of the estate for more than one year
  • Taking probate assets to which they are not entitled

What Are the Potential Outcomes of Probate Litigation?

Before deciding to take on the time and effort of probate litigation, it may help to understand the potential outcomes of the action. There are both monetary and non-monetary results possible.


Damages in a probate court are called a “surcharge.” If the estate representative breaches their fiduciary duty, you can collect damages against them. There are three ways to get damages in this instance:

  • A depreciation or loss in the estate value
  • A profit made by the estate representative through breach of duty
  • Loss of any profit that would have been collected from the decedent’s estate

There are some actions that the probate court deems severe enough that the victims are awarded double damages. This means the awarded damages are twice what the surcharge or compensatory amount was ordered to be. This will apply in cases where the person acted in bad faith and took property belonging to the estate, particularly by way of undue influence or elder abuse.

Non Monetary

The most commonly sought outcome from probate litigation is the removal of the probate executor or administrator. This person can be removed for the following reasons:

  • Embezzlement
  • Mismanagement of the estate
  • Incapability of completing the appropriate tasks
  • Wrongful negligence of the estate

The probate court also allows for other reasons to be presented if there is a supporting statute. Though a representative can only be removed following a trial or by consent, a judge can suspend the representative while other litigation continues.

Do I Need a Probation Litigation Attorney?

Probate litigation is no small undertaking and will require a thorough knowledge of the probate court to be handled successfully. It will be impossible to know whether you have a valid issue with the way the estate is being managed without this complete knowledge. Therefore, it is best to discuss your concerns with an attorney. An experienced probate litigation attorney can help you understand the validity of your concerns and the potential outcomes of the litigation.

When you are looking for a probation litigation attorney, it is important to choose one local to the area where your loved one died. It is vital that the attorney you choose has experience in the county probate court where the case will be held, as different areas may have different laws or nuances that you or a lawyer from a different area will not be aware of otherwise.

Contact Davis Toft

If you have concerns about how your loved one’s estate is being handled or need to defend your actions as an executor, you can trust our team to compassionately examine the case and discuss your options with you moving forward. We have a long history of satisfied clients that often return to us for other legal needs. For more information on what we can do and how we can help with your probate litigation needs, contact Davis Toft online today.