If you expected to inherit from a will or trust, only to find that you were excluded or that the trustee has squandered your inheritance or is holding it hostage, you may be feeling shock, confusion, and dismay. As a rightful heir, you may want to seek answers about why you were disinherited or received less than expected. If you suspect misconduct, you may want to challenge the validity of the estate plan or seek to hold the trustee accountable.

For many people in this position, the need to come up with the legal fees to take action can feel like a barrier. At Fox Law, we believe nobody should be denied their legal rights because they don’t have resources on hand to file a claim, especially since these claims are time sensitive. Contingency litigation provides access to the courts without requiring you to pay legal fees in advance.

What is a Contingency Fee in Trust and Estate Litigation?

An attorney’s work is often billed on an hourly basis, sometimes with a significant retainer payment up front. When an attorney accepts a case on a contingency fee, they forgo hourly payments in exchange for receiving a percentage of the eventual recovery they help their clients obtain (often starting at 33%, but possibly more or less depending on the complexity of the case). The attorney is also reimbursed any litigation costs the attorney might pay upfront, such as filing fees. The attorney bears the financial risk of the case; if there is no financial recovery, they don’t get paid.

Contingency litigation is often a win-win situation. Heirs can pursue their legal rights without risk, and attorneys tend to screen cases carefully to accept those that they believe have a strong chance of success.

Types of Cases That May Qualify for Contingency Litigation

Contingency fees are not appropriate for all types of litigation, but they may be a good option for certain trust and estate litigation because the assets involved are often defined, making it easier to understand the value of the case. In addition, wrongdoing in these cases is often clear and measurable rather than abstract.

Specific types of claims that may qualify for a contingency fee arrangement include:

• Undue influence claims
• Will and trust contests
• Beneficiary rights enforcement
• Trustee surcharge claims
• Financial elder abuse claims
• Executor misconduct and other breach of fiduciary duty

In California, the Elder Abuse and Dependent Adult Civil Protection Act allows plaintiffs who prevail in cases under the Act to recover attorney fees from the wrongdoer in the case. That means that the attorney’s fees in those cases come not out of the recovery of the person who brought the claim, but from the person who made the claim necessary.