KGCI: Real Estate on Air - Navigating Contentious Probate Expert Insights into Trust and Estate Litigation

Episode Date: May 14, 2026

Summary:Host Bill Gross interviews litigation attorney David Tate to demystify the complexities of probate and trust disputes. Tate, a former CPA, explains the critical distinction between routine estate administration and high-stakes litigation involving depositions and trial. Real estate agents and investors will gain a deeper understanding of the family dynamics that trigger lawsuits, the role of no-contest clauses in estate planning, and the financial realities of pursuing a case in court. The episode emphasizes the value of specialized legal counsel in managing "contentious administrations".

If you follow my podcast, when I talk to real estate agents, I try to emphasize there's different types of attorneys that specialize in different phases of the process of probate. Some focus on probate administration, the routine filing and administration. Some avoiding probate or state planning and related things to that. Another group are litigators who litigate specifically when the disputes come up. Most commonly, they're referred by other attorneys. We're excited to have today, somebody who I met, and I will talk about how I met him on the L.A. County Bar Association listserv. David, David, thank you for joining us today. Thank you, Bill.

I really appreciate and enjoy being here. It was fun. The other day, I read, I'm an affiliate member of the L.A. County Bar as a way to learn about probate, and I see questions and answers. And I saw you kind of promoting yourself to other attorneys as a litigator. Talk a little bit about you're in, I think, geographically in Northern California. Talk about how you use the tool of the L.A. County Bar Association listserv in building your business and reputation?

So I am primarily located in Northern California, but I actually have contacts throughout the entire state, including not just professional contacts attorneys, primarily estate planning attorneys that they don't do litigation, but also family members, and I've lived north and south. So I'm, and you may know the practice of law has changed considerably, particularly over the last 10 years or so where a lot of litigation is done remotely. In fact, the majority of litigation is done remotely now where attorneys practice throughout the state. So I practice both north and south is the bottom line answer. And the L.A. County Bar is a large bar association. The L.A. County Bar is huge. So, you know, you've got, what, 9,000, 10 million people in the Los Angeles

basin, you've got three million plus in San Diego. The Bay Area, the extended Bay Area, San Francisco Bay Area is about five or six million. And then I have family members and contacts in Ventura and Santa Barbara counties also. And as an affiliate, for me, it's a very educational tool because things that might seem rudimentary get asked by new attorneys and the older ones, but I also see some very sophisticated discussions go on there as well. And so I always encourage real estate agents, particularly in LA County. There are local bars in LA County.

There's a Beverly Hills Bar, Santa Monica Bar, Central City, Long Beach. But the LA County Bar seems to be the biggest one. It's a great source of information. So in particular, I saw you kind of offering yourself out there. As a litigation attorney, I imagine almost all of your business comes referred by attorneys who don't do litigation. Maybe they do probate administration real well or they do estate planning real well, but do not set up as litigators. Talk about the difference between, and though I think you also see attorneys who aren't litigators who attempt to litigate. It's a mistake against people like you.

Talk a little bit about the importance of specialization and how you feed into that process. Right. So I've done litigation since I first became an attorney. So I've done it for a long time. And most of my cases are trust, probate, elder abuse, real property, and then business litigation also. Early in my career profession, since I'm a CPA also, I don't practice the CPA. In fact, in California, it's considered inactive. But people encouraged me to get involved in estate planning.

And also people have encouraged me to become a trustee. I also, by the way, have a small practice as a mediator. But I concluded a long time ago that there is a big distinction between state planning, transactional type stuff, and normal or traditional non-litigious administrations and litigation. And so I decided, I don't think somebody, it's very difficult to do both. And so you'll see, for example, and there's nothing wrong with this, you'll see the state planning lawyers who do probates or who do trust administrations that get kind of contentious a little bit. That's very common between different families. And that's fine.

And it's also fine that they go to court. That's fine too. I only get involved if the case becomes really litigious. So we're talking about depositions, pleadings, allegations, and not just talking about breach of fiduciary duty or things of that nature, but actual pleadings and allegations. And I think that there, between the two different areas, estate planning and regular administrations on one hand and litigation on the other,

there becomes a dividing point. So I will never do, I don't prepare trust in estates or trusts and wills, but I certainly know a lot about them. So there's a dividing. That's kind of, I'm being a little long-winded, but there's a divide between the two. And often I get phone calls, ask me for an attorney and ask what they want.

And, you know, the administration, that's, you know, I would refer to somebody. It was litigation that's something different. To me, it's kind of like in sports. You know, you can look at somebody, you know, having played football. I can see the digital alignment in a wide receiver, you know, at first glance.

And I think the same is true with attorneys in that what makes a great attorney in probate administration or a great attorney in estate planning is a whole different set of characteristics than what makes one great in detailed, you know, deep litigants probate litigation. And so I'm sure you see that as well as a litigator, right? You often, I'm sure, lined up against attorney who should have passed off the baton, but for whatever reason is holding on to it. Right. And actually, along that theme and going a little further with it, I know friends of mine who they used to surprise me a little bit.

I would ask them or they would ask me, Dave, I know you're an attorney. I know you do litigation, but what do you do? I don't know. So because a lot of people don't get involved in everyday life. They never see the inside of a courtroom, which thank God for them. But then within litigation, there are different practice areas. So there is, so I do, you know, trust, probate, probate court type stuff, elder abuse plus business litigation plus real estate litigation.

There are other practice areas that I've also done some of also. There's insurance defense, there's intellectual property, there's employment litigation. And so what you find, probate courts are particularly interesting, I think, because each county, 52 counties, I believe it is, in California has a probate division of the Superior Court. The rules, some of them are the same as civil litigation, and other ones are different. And so what you see in probate, and by the way, probate also, you know, these judges in probate, they see contentious cases every single day of the week. Yes.

And so there's an attempt to, you want to. to be litigious, you also want to demonstrate to the judge that you're a reasonable person and that your client is a reasonable person. It's different than straight civil litigation. So an attorney who wants to do probate and trust litigation really needs, you can't go to a class to teach you this. It's by experience. You have to go into court and learn, and that's the way it is. And I know it's true Los Angeles that a probate litigator primarily is in the same courtrooms. not there's we have nine divisions that doesn't mean they often go

into some other related but primarily see some of the same judges over and over again versus general civil litigators in LA County can be any of the local courts they're never going to see the same judge more than once or twice most likely in their career and I know that when I said in court

I see the relationship that the judge has with attorney that either they respect them and they get a little extra they get a little okay I'll give you a break or they don't know who they all and they're going to know the rules this i'm not going to help you at all so talk about how you curate that as far as your group is yeah you you try to that's an interesting question too so yes you you try to become known to the judge uh that isn't always that easy uh because also uh

judges rotate courts will rotate a a probate judge they'll be on the probate bench for a while sometimes can ask to stay on the probate bench, but maybe after two years, they're rotated off. And so you get a new judge. You also have judges. So sometimes you'll be in front of a judge that's a longstanding, well-known probate judge, and they know you. And that doesn't mean you win your case, but they at least have some respect for you and they're listening to you more carefully. However, other times, and it's not uncommon, you'll be in front of a judge who knows very little about, about probate. I had a trial up in Yuba County several years ago. We had the, it's a small county. There's only one probate judge and there, I think there were only like four to six judges

total. And the regular probate judge had to recuse himself because he had a relationship with one of the attorneys that was involved in the case. So we had a criminal attorney or excuse me, a criminal judge who knew nothing about probate. So you always have. to be aware and by the way the probate judge doesn't know everything just like the attorneys don't know everything so there's an education process that goes along during the case also so let's talk about what causes people to litigate obviously there are you know as a as a real estate agent i see these there's disputes all the time what i call relatively minor ordinary common disputes but we talk about an actual trial where actual litigate

litigation that's involved, depositions and interrogatories and all the process that goes on with that. What are the types of things that generally lead to a case going that deep on litigation versus maybe a couple punches to the mouth and one of them decides to step aside? Right. So litigation, you know, is, I mean, that's what I do for a job, for a profession. I've done it for a gazillion years. to the average person on the street, being involved in litigation is not a fun process. I'll tell you that. So most of my cases come from a couple to me for a couple different reasons. It's generally two different family scenarios. Either there are multiple children, you know, you've got mom and dad. Mom and dad do their trust. One of them dies first. The other one takes over usually, styles mental capacity. things of this nature, and you have multiple children from mom and dad.

So just that mom and dad had the children. There weren't divorces. There weren't mixed families. It wasn't anything like that. So these children, some of them at least, haven't gotten along for like 20 years. That's a very typical scenario. They just don't get along at all. That needs to be discussed.

I don't do. Again, I don't do estate planning, but that's something that would be discussed between the mom and dad when they're doing their trust or will, their estate planning, and their attorney at that time, how do we, how do, our children don't get along, what should we do? So that's one scenario, not a mixed-fax. And the money doesn't solve the problem, as it turns out. No, money doesn't. And I've also had litigation over dad's computer equipment or the guns or the tool kits or whatever. The other scenario that I see is, a mixed family where there have been divorces and remarriages. And so there are kids from two

different families. And of course, they don't get along either. So those are the two typical scenarios. I'll add one more comment that I'm seeing a lot more that I didn't use to focus on so much, but now I focus on it in every case. And it's personalities. The personalities, and this is important for trying to settle a case too. Again, I have a smaller practice as a mediator. But what are the personalities of the competing or warring factions? And sometimes, you know, you can't do anything about their personalities. They are so far afield that you're probably going to go to trial. You're probably not going to settle the case. But often, you can find some things about personality, what makes the party tick and then try to resolve it short of trial.

You know, it seems to me, well, let me back up. Oftentimes, we'll say it on me, well, estate planning will avoid a probate in litigation. And I say, well, not really, because most cases in trial had something, a will or even a trust. That's what's being litigated. And so I imagine that just having the state plan isn't enough, though it's an important step. You mentioned the issue of children and mixed families' personality disorder. So it sounds to me like you're saying these things need to be factored in the estate planning stage in order to equip the estate in the post-estate administration phase.

So what can you do during the estate planning process with the estate planning process with the estate planning lawyer and people should go see a lawyer. I have had cases where they didn't go see a lawyer. I had a case a couple years back, 16 days of trial and it was over an online will or trust service that they used. That doesn't mean that using that that kind of a service is a recipe for litigation, it just means that there's more risk there. So if you have a couple things that, first of all, you can't stop litigation. I've told clients for years, one of the easiest things that anybody can do is to go file a complaint or in probate, it's a petition. But file a petitioner complaint in court, pay your filing fee, $465 or so it changes from court to court.

at different times. But that is one of, and frankly, you can prepare as a lay person, I don't recommend this either, you can prepare a complainer petition yourself. You don't have to, I mean, you should go see a lawyer. There are, you know, there are so many rules to, to lawyering, to litigation, that if you're representing yourself, the old adage, you have a fool for a client. And that's basically really true. But so anybody can file a lawsuit. That's an easy thing to do. If somebody really wants to do it, they're going to do it. But estate planning lawyers can look at a few things. There's what's called a no contest clause.

They are, over the years in California, the law has changed. I won't go into the history of it. It has changed back and forth, back and forth, back and forth. Sometimes the legislature wants to more enforcement of no contest clauses. Sometimes they don't want to. But basically a no contest clause says the current. statutes if you file a pleading, which in probate would be a petition, and if you allege that the Will or Trust is invalid for a couple of different enumerated reasons, and if you lose your lawsuit,

you're disinherited. And so that's a no-contest clause in a very simple form. So what do you do? I think no-contest clauses are worth putting in. They're not mandatory. It's not required. It's not a breach of of duty if it isn't in there. But frankly, a lot of people don't want to, some people don't want to, mom or dad, don't want to put them in because, well, no, that's punitive against my child. I don't wanna do that.

And that's fine, but anyway, so you can put in a no contest clause. If you do that, make sure if there's a particular one of your children who you think is more litigious and is likely to sue, then give that child some assets, some significant assets, So they know if they file a contest of your will or trust, again, this is moms or dads, will or trust,

or maybe sometimes both of them, but if they file a contest of it, like for undue influence, lack of mental capacity, fraud, deceit, those types of things. And if they lose, they're gonna be disinherited. So give them a reason to not file the lawsuit. The other thing I'll mention quickly is give consideration to who you select as trustee.

And most trustees, in most circumstances, it's a family member, it's one of the children. We can have a separate discussion sometime on co-trustees or two or three trustees or whatever, but we'll just say it's usually one of the children. You want somebody who has the correct attitude, an approach to be a trustee, and then also consider, in some scenarios, consider maybe naming an alternative private professional

fiduciary or even a bank that has a trust department. So there are some things you can do, but you can't stop people from filing a lawsuit. My father, who was an attorney, used to say anybody can file a lawsuit against anybody for anything. That is my belief. And if keep that in mind, then you have to treat people differently, to avoid them doing what they can do, not just what they're going to win. When I get phone calls from people who ask me about litigation, and I've interviewed several other litigation specialists like yourself,

you know, none of them want to give me an actual answer, but, you know, I'm a business person. I'm not an attorney. I'm not giving legal advice, but I'm trying to advise somebody what to do business-wise. As a general rule, I tell them that you're probably not going to get an attorney to seriously consider your case. unless you can come up with at least $100,000 in cost and fees up front, or there's at least a million dollars of assets that could be on a contingency basis to you,

not a million dollars split 50-50, but a million dollars on your share, maybe $2 million estate. Just because even though you don't start spending $100,000, it's like once that train leaves a station, it's hard to get it back in, and you don't know and yet be prepared to go a certain level. Is that advice reasonable, fair? According to I'm in Los Angeles, I'm sure it's more expensive here than in some remote counties. Is that advice reasonable, or am I being too aggressive on the numbers, or you're not comfortable commenting on it?

No, I'm fine commenting on it. And so, and by the way, different counties have different personalities of lawyers. So there is a difference between generally, between how a typical Los Angeles law firm handles litigation, trust in the state litigation, and generally how a San Francisco Bay Area law firm handles trust in the state litigation. Los Angeles lawyers are known for being significantly more aggressive. But that, frankly, none of my cases. cases are nice cases. They, I look at a case from the get go and I advise the client on trial,

not trial, filing the lawsuit, not filing a lawsuit. So getting to your question, lawyers will also, somebody who's going to hire a lawyer for trust, probate, litigation. There are several options as far as paying the lawyer. They're straight hourly. There are are firms that work solely on a contingency. And then there are firms that do what I call hybrid, which is a greatly reduced hourly rate, but a contingency kicker. So all of those, and frankly, I look at cases

from all three perspectives to try to come up with a scenario that works for my client. But so if, so here, I have, a little deeper. If a law firm is on a contingency, straight contingency, yes, if there isn't at least a million dollars involved, it probably is not worth their while to get, it might not be worth their while to get involved in a contingency. Whereas an hourly pay attorney or a hybrid, reduced hourly pay attorney might be interested in it. Then there are what you were referring to, you mentioned $100,000. I think you were referring to,

of pocket costs. So there are besides the attorney's fees in litigation there are costs. Those are paying the um paying the court fees in particular when you take a deposition, you have a deposition reporter, a court reporter. They tend to get pretty expensive. Uh, sometimes you have a hearing, uh, reporter. Uh, and then you get into expert witnesses. So the hundred thousand is a good, it could be less, could be more, but for out-of-pocket costs, that's a good number to keep in mind. And then finally, you said once the train's out of the station essentially, well, you actually can settle cases. Sometimes it depends on the personalities, depends on the person on the other side. There actually are reasonable family members who do, on both sides, who want to get

of litigation. And then there are unreasonable ones. And so it depends. As far as getting out of the case, I always work to try to settle a case. The courts and the judges will assign you to mandatory settlement conferences. They want you to settle the case. Everybody wants to settle the case, but sometimes not. Yeah, when I mentioned the train leaving the station, I just meant that once you start the initial cost more than you would imagine, and then you try to sell. In fact, I find, I don't know there's a phenomenon of this in your industry, but I just, I just don't know, find that everybody's gung-ho and write the first check to the attorney, you know, they're going to kill the other person, they're going to win, they're going to fight for liberty and freedom.

When it comes time to writing another check is usually when the mediation makes a lot more sense because- Right. Right. There are, again, I think it comes down to personalities. And so when I'm, I advise clients on the strengths or weaknesses of their case and strengths of weaknesses of the other parties case. And I'm honest. I don't, I don't, I want to have a happy client. Chances are they might not be happy at the end of the day because nobody's happy being involved in litigation. But there are typically, you know, I don't, there, you might have a, you might very well have a winning argument on certain issues. On other issues, I might tell you

I'd rather have the other side than your side. They have a stronger side. So there are reasons to settle these cases. And certainly the costs involved are one of the reasons. One of my first real estate coaches said, you can be right or you can be rich, but you probably can't be both. And that's a kind of a callous way of looking at life, I think, sometimes.

But being right should be the goal. The goal should be being effective or productive. And sometimes you're right. Sometimes you have to admit you're wrong or at least plead that you're wrong to move forward. One of the areas that I get involved with as a real estate broker and I see problems is when you have a party administering the estate, whether it be a probate, administrator or executor, or trust,

is kind of lack of trust in the person administering, the trustee often. And, you know, I find that on one hand, everybody underestimates the work involved. It's a job. I've done it as a fiduciary. It's a job that people get paid to do, and it's probably the collection of the things nobody else wants to do. And I also find that attorneys, no offense you personally, we haven't talked about this, but aren't as effective at describing what they don't do as what they do do. And so the customer assumes, oh, the attorney's going to do everything for me. No, the attorneys can do all the legal stuff for you, but it may advise you what to do an administration site.

And so there's both an unrealistic expectation on the administrator trustee. at the same time, people doing that job haven't had it before are likely to make mistakes, not handle a professional way. What are the most common things, and yet often there's no grounds for litigation, where does the inaction or impropriety of the trustee or administrator cross a line from, gee, they still know what they're doing, they're struggling to get this done, where's it cross a line to where there's litigation to actually weren't getting them removed? Yeah, and that'll depend on a case-by-case basis.

and also on the personalities involved, because, yes, I have cases where there's just going to be litigation. So, I, you know, I represented in one case, I was working with an estate administrator, regular, a non-litigious estate administration attorney, and he was handling the typical estate administration, the tax issues, the accounting issues, things of that nature. but the other side had the nephews had a litigation attorney as their primary attorney. So we went through the entire administration. Everything was closed up. We completed it.

It was pretty darn contentious while we were going through the administration, which took about a year and a half to two years. That's not uncommon. And then after everything was distributed, the nephews turned around and sued my client because they were always had that in mind that they would sue my clients. So there are, what I do is when we talk about litigation, I also do what I call contentious administrations. Those are administrations where it's not just family, you know, it's very common that family members will, your mom or dad died.

you're you had the children had different relationships with mom or dad growing up they have uh and mom mom and dad appointed or nominated one of the children to be the executor or the trustee uh most people that become executive trustee have never done it before uh a lot of people who go through a trust or uh or probate administration say they never want to do it again yes it's hard It's a hard job. And yet they're trying to do their best. When does a, it's important, hopefully for the beneficiaries on the other side, there's somebody who can explain to them that an administration takes a while.

And it just does. I'm going to throw out a year and a half as perhaps a guideline. And there are a lot of things that happen during that time period. marshalling the assets, determining who the assets go to, doing accountings, which you give to the other beneficiaries. If you're in a probate, you're in court. The court has a typical courts these days in probate have backlogs. It can take two months, three months to get a hearing date. And that'll just be an initial hearing date.

That won't wrap things up. So at what point does it cross the line? There's no bright line test, but generally, I mean, I would say if the trustee and executor and their attorney, they really should be represented by an attorney, if they're sharing information, if they're sounding helpful, they're not hiding things, they're going to provide an accounting eventually. You're fine, even though it's contentious. But it's when people start doing stuff sort of like on their own, not sharing. information, not telling beneficiaries what's going on, then it can be litigious and then a beneficiary needs to, let me put it this way. Beneficiary should probably go and hire counsel themselves, and then the attorneys will talk back and forth and try to get a feel for, is this going along

fine or isn't it? So, you know, sometimes attorneys can make cases more difficult, depending on the of personalities of the attorneys. Sometimes attorneys help. And sometimes it's good to have attorneys talking to each other. Right. If those listening to were real estate agents like me, I think this is where I try to play a little bit of the oil in the gears to smooth things because attorneys can't talk to other parties,

but we as realtors often can. And so I try to make an effort to call the other beneficiaries to say, hey, we are trying to get top dollar. We're not selling it to the administrator's friend. We're not, you know, we are on the market. Here's the comparative market analysis I did. Here's the list of other offers we've received. We do our best to try to say we're doing the best we can.

And I think, you know, like most things in business, everything only takes longer than you'd expect. It only costs more than you expect. And you only get less than you expect at the end of the day. Making that work is what a professional has to do to get things done. And by the way, just on that note, I mean, you mentioned some of what you do. It is very helpful in a case if real property is going to be sold and there are many different issues that can pop up before that real property can be sold. But it is very helpful to have somebody like you with your experience level.

So you've seen the cases. You've seen the disputes and the contentiousness between the parties. You've seen how the court handles it because if it's a probate, you might need to have court approval. There are a whole bunch of things. So your experience level is invaluable. Thanks. And that's why we do this.

I think to learn, I appreciate your sharing this information with us. You know, I think that one of the things also I, you know, appreciate about you and respect that I wish more attorneys took was kind of the career decision

to specialize in your case in litigation versus being a generalist. I think that oftentimes I, you know, I have a client who opens a probate. We don't know where it's headed. We discover there's, another error we discover the hired an attorney now you know it's like a hockey match the gloves are off and they're killing each other and i feel like oh we had the wrong attorney or he needs to get

a litigator involved in this uh at least to advise him on how to avoid problems down the road um but i'm sure at some point that must have been a courageous decision in your part to make the decision to go that way litigation i think you're getting paid later you know longer maybe more per hour eventually but as a business decision that must have been a challenge freedom to go down that road. What was it like when you made the decision to go from kind of more generalist attorney or more types, more well-rounded cases to specializing in litigation? Right. Well, and with me, the story is a little longer, but we won't, we're not sitting down having lunch or coffee. But since I was a, a random graduate was in finance, then I got a

master's in tax. Then I went to work for the CPA firm. So I had all that background before I went to law school. And so I had several options, including litigation and non-litigation. But skipping to, so I started out with a lot of what happens to a lawyer sometimes is just a happenstance. You know, who do you know, who do you meet? And with me, I took a job with a litigation firm. well, actually it was a full service business, real estate, and litigation firm and estate planning in San Francisco on California Street. And it just, and I was doing straight civil litigation, employment, breach of contract, investment stuff. And that's very common. It was a great firm to work for. I was in court the second week I was there. That's very unusual these days. The attorney that I worked for

was actually somebody who many people didn't like working for, I will tell you that what I learned from him was invaluable. But long story short, during the course of being with that firm, the managing partner did estate planning. And he needed somebody to sometimes to go into court in his cases. And so I started doing probate types of cases. And I liked it from the get-go. And so I started, in addition to civil litigation, I started doing probate litigation and court work very early in my career. And it was just happenstance. But at one point, I was with a firm that closed. And I sat down and I said to myself, well, Dave, what do you like to do?

I looked at it. What do you like to do? And I said, well, absolutely one of those areas is probate work, trust and probate. litigation. And so I've basically done it almost my entire career. Wow. You know, I appreciate that, especially here, we're recording this now at the beginning of the year, people often do business plans and need to reassess their business. And it's some important to find something you really like to do. I know for me in real estate, I've jumped into probate six years ago and all my lead

generation, all of my, you know, education, all of my discussion of a new business related to probate because I just enjoy it. I feel like I learned. David Tay, I felt like I learned so much from you as a specialist. in litigation specifically, probate and trust-related. I'm a little over time here, so mindful of that. I'm going to wrap up a little bit. As soon as I get hold of you, we're going to put your contact info below. Phone number 415-9174030, and it's tate attorney.com is the website.

And anybody who's in real estate and probate want to learn more about it, really recommend you check out his website, which is a blog and a series of blog posts. They really go into detail. I send him a list of questions, and I kind of got fascinated by the blog post and made some notes. And we even cover a tenth of what some of these fascinating details you talk about. You really are a wealth of knowledge. Thank you so much for sharing information online. And thank you for sharing today with us here on Propriet Weekly.

I really appreciate your time today. Thank you, Bill. Again, I really appreciate being on your show. It's a great opportunity for me. And I love your show. Thank you. Thanks so much. And we'll do it again sometime soon.

And this is Bill Gross, Probate Weekly. We issue new episode every week, often with attorneys, whether the Probate Administration, Probate Abundation, probate avoidance or state planning or probate litigation, as well as vendors and practitioners, to be better at our practice. The goal here is to learn how to better serve our customers. If I can help in any way, I'm at Bill Gross Probate on social media. If you like this, please like, subscribe, share, email me with any questions. And as always, make today your best day ever. Thank you so much.