Can’t Afford Hourly Legal Fees? How a Contingency Fee May Help

Short Answer

If you cannot afford hourly attorney fees or a large retainer, a contingency fee may make it possible to pursue a California probate litigation or trust litigation claim. Under a contingency fee arrangement, attorney’s fees are generally paid from a successful recovery rather than paid in advance. However, not every case qualifies, and clients may still be responsible for litigation costs.

When an Inheritance Is Being Withheld

An inheritance should not disappear because a beneficiary lacks cash to hire a lawyer. Yet many California families face a difficult situation: a trustee controls the Trust, bank accounts, property, and trust money, while beneficiaries are told there is nothing to distribute or receive no clear explanation.

Sometimes, delays are legitimate. Trust administration can involve taxes, debts, property sales, and court issues. However, concerns become more serious when a trustee refuses to provide information, withholds distributions without a valid reason, uses trust assets for personal expenses, or fails to account for money and property.

In those cases, beneficiaries may need legal help, but the cost of hourly attorney fees can feel out of reach.

The Problem With Hourly Attorney Fees

Traditional legal billing usually requires a retainer. A retainer is money paid in advance for legal services, and the attorney bills against that amount as work is completed.

For straightforward matters, hourly attorney fees may be practical. However, probate litigation and trust litigation can become expensive because they may require document review, financial analysis, petitions, discovery, witness preparation, settlement discussions, trial, and possibly an appeal.

As a result, a beneficiary may have a valid claim involving a substantial inheritance or valuable trust assets but lack the money needed to fund a lengthy dispute. A contingency fee may help close that gap.

What Is a Contingency Fee?

A contingency fee arrangement means that attorney’s fees depend on obtaining a recovery. Instead of billing the client by the hour, the attorney receives an agreed percentage of money or property recovered through settlement, trial, or another successful outcome.

For example, assume a trustee allegedly transferred trust money to a personal bank account and failed to make required distributions. If the evidence supports a claim and there is a meaningful potential recovery, an attorney may consider contingency fee representation.

This arrangement can help clients pursue claims without paying all legal fees upfront. Still, a contingency fee is not “free legal representation.” Court filing fees, expert fees, deposition expenses, accounting reviews, and other litigation costs may remain payable depending on the written agreement.

When a Contingency Fee May Help

A contingency fee is most relevant when there is a potential financial recovery. In California, this may arise in probate litigation or trust litigation involving missing inheritance, trust assets, money, or property.

A lawyer may consider a contingency fee when the case involves:

• A trustee who allegedly used trust money for personal expenses

• Missing or misappropriated assets

• Wrongful withholding of inheritance or distributions

• Trustee misconduct involving bank accounts or financial records

• Self-dealing, such as a trustee transferring property for personal benefit

• A breach of fiduciary duty that caused financial losses

• A claim to recover money, property, or trust assets for beneficiaries

• A petition seeking an accounting, trustee removal, or financial recovery

The key issue is not simply whether a beneficiary feels mistreated. The case must have sufficient evidence, a viable legal claim, identifiable assets, and a realistic path to recovery.

Why Evidence Determines the Case

Evidence often determines whether contingency representation is possible. A lawyer needs more than a suspicion that a trustee acted improperly.

Helpful evidence may include:

• The Trust document, amendments, and wills

• Financial accountings and trustee reports

• Bank account statements and canceled checks

• Property deeds, sale documents, and appraisals

• Emails, text messages, and written communications

• Records showing distributions made to beneficiaries

• Proof of personal expenses paid with trust money

• Documents showing transfers of trust assets or money

For instance, if records show that a trustee transferred trust assets to themselves without proper authority or disclosure, that evidence may support a claim for breach of fiduciary duty. On the other hand, incomplete records, unclear Trust language, or limited financial losses may make litigation more difficult.

Trustee Duties in California

A trustee is a fiduciary. This means the trustee must act in the interests of beneficiaries and follow the terms of the Trust.

Among other duties, trustees are generally expected to protect trust assets, keep records, avoid self-dealing, provide required information, and make proper distributions. Trustees should not treat trust money as their own money or use trust property to pay personal expenses unless the Trust and circumstances clearly permit it.

When trustee misconduct causes losses, beneficiaries may seek legal remedies. Depending on the facts, a petition may request an accounting, return of misappropriated assets, removal of the trustee, recovery of money or property, or damages for financial losses.

Contingency Fees Are Not Available for Every Matter

Not every Trust or estate matter is appropriate for a contingency fee arrangement. A lawyer must consider the value of the potential recovery, available evidence, the complexity of the case, litigation costs, and the likelihood of settlement or success at trial.

For example, contingency fee representation may be less likely when:

• The possible recovery is small

• The trustee has no accessible assets

• The evidence is limited or disputed

• The matter primarily seeks advice instead of financial recovery

• The dispute involves routine trust administration

• The costs of litigation exceed the likely value of the claim

In addition, estate planning services such as Trust preparation, wills, Medi-Cal Planning, Pre & Post Nuptial Agreements, and Estate Tax planning are usually handled under other fee structures.

Questions to Ask Before Signing

Before agreeing to a retainer or contingency fee arrangement, ask clear questions about the financial terms.

• What percentage of the recovery will be paid as attorney’s fees?

• Are litigation costs separate from attorney’s fees?

• Who pays costs if there is no settlement or recovery?

• Does the agreement include trial preparation and trial?

• Does the agreement include an appeal?

• What happens if the case settles early?

• Will the lawyer seek recovery of attorney’s fees from the trustee or estate when legally available?

A written fee agreement helps ensure that the client and lawyer understand the scope of work, costs, and potential recovery.

FAQ’s

Can I bring a trust litigation claim if I cannot afford a retainer?

Possibly. If the claim involves a measurable financial recovery, such as withheld inheritance, missing trust money, or misappropriated assets, contingency fee representation may be an option. Eligibility depends on the evidence, value of the claim, and expected litigation costs.

Can a trustee use trust money for personal expenses?

Generally, a trustee should not use trust money for personal expenses unless the payment is authorized by the Trust or is a legitimate and documented trust expense. Improper use may create a claim for breach of fiduciary duty or trustee misconduct.

Can beneficiaries ask for an accounting?

Yes. Beneficiaries may have the right to receive information about trust administration, trust assets, money, property, and distributions. If a trustee refuses to provide information, a petition may be necessary.

Will I pay legal fees if I lose?

That depends on the contingency fee arrangement and the nature of the case. Although attorney’s fees may depend on recovery, litigation costs may still be owed. Review the written agreement carefully before moving forward.

Conclusion

Hourly attorney fees should not automatically prevent beneficiaries from protecting their inheritance. Where evidence shows trustee misconduct, wrongful withholding, self-dealing, misappropriated assets, or breach of fiduciary duty, a contingency fee may provide a practical way to pursue recovery.

Moravec Varga & Mooney represents individuals and families in California Probate, Trusts & Wills, Trust Administration, Medi-Cal Planning, Pre & Post Nuptial Agreements, and California Estate Tax matters.

If you are concerned about a withheld inheritance, trustee misconduct, missing trust assets, improper distributions, or a possible breach of fiduciary duty, have a question? call (626) 793-3210 or email LV@MoravecsLaw.com.

Moravec Varga & Mooney serves clients throughout California, including Los Angeles, Riverside, San Bernardino, Sacramento, Santa Cruz, and beyond.