Hot Litigation Topics to Consider When Creating Estate Plans, with Andrew C. Kienle

0:03 So the goal one goal of any estate plan, there's a lot of my guests, but one goal is to avoid being litigated, right? If you have a plan written out, you want your plan executed. If you end up being sued by somebody in court, it means probably the plan was not written as well as it could have been, at least according to somebody's opinion. We're excited to have today a attorney who's a litigator specialist in these issues to give us the list of hot litigation topics to consider when your estate plan. Andrew Kienle, thank you so much for joining us today. Absolutely. Thank you for having me. And just a kind of quick overview, based in Orange County? That's right. So we're an Orange County based law firm. My specialty is trust and estate litigation. Although we are in Orange County, we handle cases all over the state. So happy to help people with their unfortunate situations that they get into in litigation dealing with their estate plans. And for those who aren't attorneys, you know, the probate code is the same set of laws throughout the state of California. Though each county has their own rules and of course responsibilities and people and judges and formats, but the laws are basically the same state wide. And so that's why it's not common for especially a large state like California for large attorneys to have a much broader practice than common say for a real estate agent or other professionals or other attorneys. And so let's talk a little bit about the main issues where there are the hot topics in litigation. I know what one of the hot topics from the beginning is the accounting issue. Talk a little bit about what kind of issues get litigated and can be caused litigation when you talk about accounting issues.

1:31 Sure. So first off, what I hope to do today is is give the listeners things to think about when they're either considering creating estate plans or changing their estate plan. And these are things to consider to avoid a litigator like myself. So these are what I see as the topics that a lot of people will either have issues with or file lawsuits in this area on. So the first one as you mentioned is trust accounting. Trust accountings are required by law. the trustee [snorts] has to account to beneficiaries who are entitled to some form of income or principal. And that's to be done on an annual basis. And the issues I really see there are whether or not the trustee needs to file those accountings with the court to get the court to approve them. Or whether they just send them out to the beneficiaries and then wait the requisite amount of time before taking any further action. So that's kind of the first thing that, you know, a trustee needs to consider is whether or not they file them with the court for approval or they just send them out more informally to the beneficiaries. So just to stop there for a second. So a beneficiary should accept should expect to get some form of accounting at least on an annual basis. Correct. So but with the caveat of the beneficiary who is currently entitled to some benefit from the estate. And that means for example, if, you know, you're a remainder beneficiary, meaning you're not going to receive anything from the trust until your parents pass.

3:11 You're not necessarily entitled to the accounting now. Only your parents would be because they're the ones entitled to the benefit. It's only once you're entitled to receive some form of asset, whether it's income or principal, that you would then be entitled to that those annual accountings that I mentioned. And then to be a little more specific cuz I actually have one I'm involved with right now. That'd be only if you are a beneficiary, meaning if the if the administrator says, "Well, you're not really beneficiary a beneficiary and there's litigation on the subject. I am a child, I'm entitled, whatever the rules are." if that's the administrator could use that as a reason, may or may not hold up, but a reason not to write accounting because they would say, "Well, based on my understanding, you're not a beneficiary at this point." That's a great point. Yes. so trust accountings are only required to be provided to actual beneficiaries. So for example, if someone has been disinherited, then they file a petition to invalidate something that disinherited them, they're not automatically entitled to an accounting. It's only if they are, as written, a beneficiary. And then what happens in the meantime? Are the is the administrator required to file such accountings so that if later is determined somebody is beneficiary, they give them accounting of the past? No. So in that instance, if for example, the beneficiary that was disinherited, they have a petition that's pending in court, there is no obligation on the part of that trustee to prepare and file an accounting.

4:42 They can certainly and they obviously have to, they're under a fiduciary obligation, to send those accountings to the beneficiaries, but no, not until there is some form of court order would that potential beneficiary be entitled to receive that information. And do these accountings necessarily include tax returns or other cases where trusts do not have filed tax returns?

5:03 No, they're not they're not technically required to be part of the filing or the documents that are forwarded over to the beneficiaries informally. Basically, what you have to do as a trustee is you need to provide all of the beneficiaries information so that they understand how their interest in the trust is impacted by income that's received and expenses that are paid. So basically, you have to provide information as to assets on hand and any income received during a certain period of time and then the expenses. And that's important because a lot of people, of course, will go through those accountings with a fine-tooth comb and challenge everything. So that's sort of the flip side of this is, you know, you do have to provide the information, but as trustee, what extent do you provide? Do you go into great detail? Do you provide the tax returns? Do you not? You just give them more summary information. So that's kind of a an exercise that we go through with our trustee clients all the time. And I know on this topic, you often talk about both the positive and negative of being transparent, right? People think, "Oh, I'll just share everything." that can be positive, but it also can be a negative to the administrator. Absolutely. Negative in the sense that you're giving all that data, so you now give beneficiaries more things to question. Right. For example, trustee fees or expenses that were paid. So the less is more approach can be helpful, but not always.

6:35 I've seen cases where there's quibbles over, you know, taking the beneficiary when beneficiary is to lunch and there's two hamburgers and two fries, not one and one. And so you know, they went to Wendy's, I think it was, and bought lunch and she only bought the meal for the beneficiary and not written out the other one. So no different than a business.

6:54 Point. That's that's the sort of issue you could run into as trustee, you know, in those people nitpicking whatever is disclosed in the accounting. And it probably cost 500 bucks worth of attorney fees and time to argue over the $10 hamburger and french fries that somebody might have disputed. And the other side doesn't want to solve it for $10. They want to they want a $500 objection and a filing and a court and all that. Exactly. And so I think your solution for this is then to then estate plan might consider giving more details of what to expect so that the actual result is the proper amount of information transmitted and the proper amount withheld. Right. So the more detailed and explanatory information that you can include in your trust, the better, right? Because it is truly a road map for the person that's going to succeed you once you pass away in administering the trust. So the more detailed, the better. You know, you can specify in your trust exactly what information that you want the trustee to provide to the beneficiaries and when. Of course, within the confines of the law because if there's any dispute between what's in the trust and what the law says, the law's going to control. But it's definitely important to be as specific and detailed as possible in your trust.

8:14 And of course, I there's no way really on the on the estate document to anticipate who the good guy and the bad guy is. I guess you would always think, "Well, gee, if you have all the information available, it minimizes your litigation costs." But of course, it also might empower a bad litigator who's just trying to cause problems. So I guess these are things that a seasoned attorney is going to have a relationship with his client and work out and do the best anticipate as best they can. Well, and that's why, you know, I think, again, we only handle litigation side, not the drafting side, but it's to me so important for that dynamic between client and estate planning attorney to be one where there's conversation, right? It's not just, "Here's the document. Right. Make changes, sign it." It's more about, "What do you want? What can you expect going forward?" Because the whole point a lot of people sort of think about, "I don't want litigators. I don't want attorneys to be involved. I'm creating this trust so that everyone knows exactly what's to happen upon my passing. And you know, hopefully that's what's going to happen between the conversations with the estate planning lawyer. So I know a second area that's common that I see regularly in my in the real estate side is fighting over who the trustee is, whether it be a who gets appointed and or removing when doesn't do the job. And so you know, where are the common areas of problem that cause the wrong trustee or the inability to appoint the proper trustee?

9:45 So one big issue I see on this specific issue is that, you know, a married couple will have, you know, three, four, five children, whatever, and decide that they're going to name them as co-trustees, all of them, because they're my kids. They're going to get along. That's a huge issue I see. What world do that I'm just curious. What world did that happen that all the kids got along? I'm just curious. I've been around a while. I just don't see that very often. Exactly. Or you have situations where the parents say, "Our oldest is going to be the trustee because they're more responsible." Whatever it might be. Those situations lead to problems because whatever sort of family dynamic you have going back many years can really come to a head at that point where you have one person in control to the detriment of the others and you get all those issues coming back again or you have people who are co-trustees who can't get along. So, my advice to avoid those types of lawsuits for removal or, you know, filing a lawsuit against your sibling for breach of fiduciary duty is to do simply take it out of the dynamic of the family and maybe appoint someone who's more distant in the family or a trusted friend or a CPA or something like that to really get it out of that emotional component and hopefully have a person that everyone trusts and everyone understands is going to do the right thing and, you know, handle the trust administration in the right way.

11:20 You know, I work more and more with professional fiduciaries who do this job. They may have a CPA background or legal background or real estate broker background in many cases I deal with. but it seems to me that while those can still be nasty and contested and it all that, it seems the things the ball seems to be moving forward more efficiently in the long run for everybody's benefit. At least as a as a you know, third party watching that from behind and was curious why you they're not used more often. I realize there's a cost involved with it, but it seems to me to be a fraction of the litigation and expenses that are caused by the by constant fighting with a family member. That's that's absolutely what I believe to be the reason a lot of people don't have listed as their successor as a private fiduciary is the cost. And remember going into this, I think the mindset is my wife and I, husband and I, whatever, are creating a trust and we're going to avoid extra cost, right? Litigators or professional trustees. So, they just decide we're going to appoint our child or children and, you know, [snorts] when you have situations where either they the private fiduciaries named in the trust document or they're appointed by the court, in addition to their own fees, they usually have their own lawyer. Yes. Yes. Not only paying the trust isn't only paying for the trustee fee, but the trustee's lawyer as well.

12:47 So, there is definitely added cost and, you know, I found a lot of times if you have a private that's appointed by the court and sibling or a child removed you still have that animosity and you have a situation where now who's this person? They're a stranger to our family. They don't know what they're doing. All they're in it for is the money. So, it's just it's quite a catch-22. Yeah, well, I'm involved with one of those right now and it was interesting when we met at the property it was a unique case with like 80 or so cars and I mean an incredible collection of personal property in this house and I was just there just kind of see it and one of the siblings was so hostile that she was like physically threatening the fiduciary and I remember talking to the one of the attorneys on one of the sides and he said, "Well, the guy falsely accused my client of being physically confrontational." I said, "Listen, I was there. I'm 6 ft 300 lb. I'm pretty big. She threatened me. I mean, I don't I don't take the bait. I'm a professional, but I you know, I'm not going to go back to the house without a security guard. That's how hostile she is." And her energy was exactly like you said, "Who are you to make these decisions? You're selling my family." Meanwhile, the rest of her family scared of her, rightfully so. Yeah.

14:08 So, it's one of those things where she's going to be mad at somebody and just whoever's in front of her at the time, I think, is Yeah, you're never those types of people, you're never going to make them happy. So, you just hope that, you know, somebody's in charge who is just going to get the administration completed as efficiently as possible. The challenge I see often is that it's kind of stuck from the beginning. Like if you get off to a good start, you usually get some momentum, there's some assets, there's some money, people kind of get a sense of it, but often times I find, you know, there's a trust and there might be multiple pieces of property, multiple assets and the administrator just isn't doing really apparently anything. He might be pocketing proceeds unreasonably. He might just not have the time to handle it properly. At some point though, the other beneficiaries want to get together and have them removed. And so, I'm sure that's part of your litigation is removing a trustee. What are the standards that that can be done because I imagine it's it's a fairly high bar. You can't just say, "He's mean to me on the phone." There's got to be some documentation and some specific actions that trigger cause for removal. Absolutely. So, those are difficult petitions to actually prove especially if the person that you're seeking to remove is identified in the trust as the successor trustee. So, the trustor said, "This is who I want in charge." Whether they're, you know, being as efficient or timely as possible if they're in charge and the trustors, the parents wanted them to be in charge, it's very difficult to remove them. You have to show that they are doing something that is harming the trust as a whole.

15:47 It can't be just that, "Oh, well, they're taking too long." or, you know, they're they're favoring certain beneficiaries to the detriment of the other. There has to be evidence that they're doing something harmful. They are breaching their fiduciary duties. They're self-dealing. You know, they're not maximizing the value of the assets in the estate, something like that. It's got to be, you know, pretty significant. Like you say, it can't just be, "I want them out because I don't like them." It just doesn't work that way. The common case I see is probably too small threshold to bring in a litigation attorney is where maybe the major asset is just a house. Of there's three beneficiaries. The administrator is one of them. He's living in the house. He's lived there for 10, 20 years cuz he was the caregiver and he took care of mom or dad in their final days and earned that. He lived there forever for free. Doesn't have the capacity to live anywhere else really. Doesn't have any other income. And so, in some regards, he's a mister. He's obviously squandering the asset to the detriment of the rest. At what point is that threshold reached where one of the others can say, "Hey, you need to sell the property or rent it from us and give us some income." So, what I usually counsel beneficiary clients on that specific issue is it is not a fast process. Trust administration is just not. So, I usually will tell people that you can expect and should expect significant movement as far as completing the trust administration within about a year to 18 months after date of death of the last surviving trustor.

17:25 So, if you have a situation like you just mentioned, which I do see quite often, what I usually recommend is you send a demand letter out to the trustee and say basically, "What's going on? What is the plan of action as it relates to selling the house, you buying the house, you renting?" Whatever it might be. And at least then start the dialogue hopefully because the trustee has an obligation as I said before, to keep everybody informed, to provide information and then ultimately within that one-year period to provide the accounting. If they're not doing that, if they're absolutely sitting in the house rent-free then, you know, if the sort of informal demand letters don't work, the next step would be for the beneficiary or beneficiaries to file a petition with the court to either instruct that trustee to do his job, to move forward with the administration, or for removal. and certainly in your scenario, you would want to include a request for rent because you can't do that. You know, any beneficiary cannot receive more than their share. So, if that individual is living in the home not paying rent, they're receiving more than their share and that has to be accounted for ultimately when things are distributed.

18:46 It seems like at some point that rent would go back to the date of death. They're receiving a benefit living there. And so, if it drags on for years, I've, you know, I've, you know, often asked the question, "Is that possible leverage in this negotiation?" because they're out, you know, 2/3 of the value of rent for 2, 3 years. That's that becomes real money at some point.

19:05 Absolutely. Absolutely. But it's not automatic. You can't just use those facts and get the court to say, "Oh, you're right. We'll remove Bobby and appoint Mary as administrator." And I do think what I've seen more often than anything is a court ordering action for some period of time and then when the trustee doesn't respond in a timely manner, that's when the movement towards removal becomes more germane or possible. Right. So, all of that those sort of steps would factor into the litigation. So, you file your petition. Generally speaking, if there has been no accounting or it's been something that's insufficient in some way, then the court would order an accounting. Then you tee it up for the beneficiaries to object to the accounting and that's when you then build on, "Okay, now do we have enough evidence to remove them? Or do we just want the court to order them to complete the administration? So, it's kind of a process of building throughout the litigation. Okay, so [clears throat] next is the process of modifying or terminating trusts. I think the Do you know, I always get nervous when I see multiple modifications to trust because I always imagine you could have missed one or you know, by definition, you're correcting something that wasn't there before. Did that become germane? So, talk about some of the issues that are common in with modifications of termination of trusts.

20:33 So, modification also I would title that when a beneficiary wants to invalidate an amendment to a trust. So, there's been purportedly a modification, meaning an amendment, and the whatever beneficiary decides they want to challenge that, they would file their petition to invalidate that amendment. And this is a situation you see quite often with blended families. so, for example, you know, if mom and dad create the trust, dad passes away, mom still has all the rights as the surviving trustor, mom remarries, changes the trust to give the new spouse some portion of what her and her initial original spouse had created, that's where you really get those kids from the original husband and wife coming forward saying, wait a minute, we always understood we were going to get everything that was left after our parents both passed, but now you're giving a share to somebody else. What happened? When did you amend it? You know, did this new spouse influence you in any way? you see, you know, with the baby boomers aging now, you see a lot of issues relative to mental capacity and whether or not the person had the mental capacity at the time that they reportedly created that amendment. You know, is that there? Is it not? Did they Did the new spouse take them to, you know, a new attorney? Did they go to LegalZoom? So, lots of major issues relating to modification or termination of trust. And on that one, you know, to avoid me to avoid the litigation, I think it's incumbent upon the husband and wife to stay in touch with that estate planning lawyer, to advise that lawyer of significant life changes like a death or like a marriage, a new marriage, and make sure that their estate plan is exactly as it should be.

22:34 And if there are any changes made that they're properly documented, there's, you know, all that you need in the file of that estate planning lawyer to say, yes, the person had capacity. They changed it because they wanted to. They weren't being unduly influenced by anyone. Those types of things. because you know, the invalidation of trust amendments or restatements is something I see quite often. But again, those are very difficult cases to prove, and you have to have the evidence of lack of capacity, undue influence, or some sort of fraud in order to prevail and try to get the court to say, we're going to completely disregard this part of the person's estate plan. One of the processes that I'm sure you participate regularly is looking for instruction from the court of what should be done. How do we interpret this because the trust was written either vaguely or was written and didn't anticipate something. And so now you have a question, well, what does this really mean? Who's this really mean? What the percentages really mean? So, talk a bit about the process. It's not as easy as just walking into court with come to wind and say, hey judge, what do we do? because you There's a process to get the judge to do a formal answer, and there's a process once he gives it to you to get it in writing. Talk a little bit about getting instructions from the court and what some what some alternatives might be to get questions resolved. Sure. So, if you whether you're a beneficiary, a trustee, or a combination of both, and you need some form of instruction from the court, you're going to have to file a petition.

24:09 And a petition is a lawsuit similar to a complaint. It's the same type of process that you would follow if you want to [snorts] remove a trustee, if you want to challenge the validity of a modification to a trust. So, all of it starts with a petition with the court. And the petition for instruction is simply letting the court know there's an ambiguity, like you say, in the trust itself, or circumstances have changed, so we need to change something that's stated in the trust. and you have to go through the process, and that process can be very long and very expensive, but it's in everyone's best interest to do that so that you know exactly what rights and obligations are of all the parties. One way to avoid it, meaning formal litigation if possible, is that if you have all the beneficiaries and the trustee agree in writing, that's the way to resolve any of those ambiguities or questions as far as construction of a term in the trust. If you have everybody on board, [snorts] you have everyone sign off on a document that confirms everyone's understanding, that's certainly a way to avoid it avoid litigation. And as I see these petitions in court, and the client imagines, oh, well, we filed this petition, we're going to get the answer.

25:33 And I say, well, you should talk to the attorney because typically the first hearing is a kind just a kind of feel of where we headed with this and lay out a game plan to evaluate this petition, which often includes discovery and evidence and objections and responses to objections and a pre-court pre-trial hearing to review everything before they have a court hearing if it's being argued. So, some of these things can take years what would be look like a simple question, you know, what did he mean by my son or my sons or whatever it is, really could be the essence of litigation that could take years. Right. And that's very true. So, a lot of people just assume, you know, you file your petition, you have a hearing, the judge is going to decide. Unfortunately, that's not the way it works. Like you say, there's many hearings, many interim hearings we call them. and the judges usually the There are types of motions that would differ from this, but usually don't make a decision on something that's requested in a petition until the trial date. And you know, trial dates in most all counties throughout the state, you wouldn't see for a year, 2 years maybe, from the date of filing the petition. So, very lengthy, very expensive process. And there's ways to avoid it, but if you have to go that route, then you know, you file your petition and you hope that there's not going to be objection. You hope there's not going to be too much discovery if it's a fairly clear-cut issue.

27:05 And then you just tee it up for a trial, which hopefully will be short, and you get your answer from the judge. But that's the only way to really do it. So, you say that and you know, and yet oftentimes the trial date is the beginning, and there's multiple dates set, and the judge has vacation time, and so the trial date starts July 2026, but then it's a 4-day trial, and the fourth day is until August, and then they take their submission, and the judge then files an order, and then it's reviewed by both parties. So, these things really can go an indeterminate amount of time. It's just There's no way to anticipate. Yeah, you hit the nail on the head because I've noticed since COVID, it's not a situation where you'll get a trial date, and it'll just be four or five consecutive dates. Right. Say it can be one afternoon in June, and then another morning in July, and then, you know, an afternoon in September, and then once, you know, the matter is submitted for decision, then the judge, if it's a judge only, no jury, judge has 90 days to rule. That can be pushed out even. And then once there's a final ruling, then there's the whole appeal process. So, you are absolutely right. It can go on and on and on. I mean, I have a case where the trial was in November of 2024, and we still don't have a final decision.

28:33 Well, may I see this all the time because I being real estate, I get the case numbers, you know, as part of the documentation for real estate forms. And you know, in LA County, the first two digits of the year are 26- and then the case number, 25 for 2025, 24. I think they only changed the date of that system. but then, you know, I see cases 19- I see cases they have letters because before the 2019, they used letters. And you think, well, how long has this been in around? Well, the answer is it's been around for 10 years, 20 years. I've seen numerous cases. Yeah. Well, and too, just to clarify that a bit, if you have multiple petitions on the same trust, Yeah. you're supposed to use in most counties the same number, the same case number. So, it could be that you've had multiple petitions, but you're right. That one petition could have lasted for a number of years. So, it kind of brings me to understanding your business is you know, how do you set proper expectations? I mean, literally, it can go from a sternly worded letter or a finely worded petition, and the other side capitulates, to years and years with no real firm schedule.

29:51 And it can go from whatever you start with, I imagine. You know, I tell people that you can you really can it depends by attorney and the matter, but you better be ready to write check for at least $100,000 to start. And you better or if it's a contingency, you better have at least a million dollars and a clear path to that million dollars for a contingency. So, I guess my question is how do you set the expectations? Are those numbers reasonable? Am I too low, too high? How do you set a prospective client's expectations? Well, I think it's very important early on at the you know, the very beginning conversation to know the value of the estate. Right? And what's really what is this dispute about? Is it about you know, an estate that's valued at five million dollars and there's a dispute about everything meaning who gets what, when, what the values of the properties are? Then it's something you can counsel the client on, okay, this is something that we you know, we can certainly take it through trial if needed. You always want to try to settle because you maintain the control over the outcome. If you go through trial, you're relying on a third party. Granted in most cases in this area it's a judge, but you just never know how it's going to turn out. There's always that risk. And so, the first question is what's the value of the estate? and then second is, you know, where do you want this to go? What is the client's expectation as far as what they're seeking? Do they just want to make sure that you know, they get their fair share and they're done? Do they want a pound of flesh from the trustee?

31:30 What is it that they want? Because that too is going to dictate kind of the scope and the aggressiveness of the litigation if you will. And if it's simply a matter of you know, the client says I don't want to go through full litigation. I want this resolved. Well, then it's a different strategy. It's more about you know, significantly you know, adversarial letters where you're trying to get the other side to see the light if you will with counsel's help on the other side if possible and resolve it, you know, before you get to litigation. So, it's different strategies, but it really does depend on client's expectations and the value of the estate. But you're right on the numbers. I mean, we you know, we don't do contingency work, but it's all hourly and you're going to spend a hundred grand if it goes all the way through a trial. You just are. I mean, there's certainly parts of it that you don't know because you can't anticipate what the other side will do as far as discovering things, but just going through that process of a year plus time from the filing of a petition through trial, it can get in six figures easily. And the problem is if it goes longer, at some point, you know, you have a problem. And I had a attorney I interviewed where it was a fairly publicized case where it was an elder abuse. A real estate broker had abused an elderly couple of property. I want to say it was like eight or ten million dollars. And they had a family member who was able to put the cash up to start, which is great.

33:04 They were very fortunate in that regard. But this well-to-do family member ran out of cash before it was settled. And I think they I think they told me they were into it for about 150 or 180. And they just said at that point, you know, we don't have any more. And the attorney was able to turn it into a contingency blended, whatever. They worked something out and they won. Fortunately, it worked out for everybody, but just to write a check for $100,000 doesn't necessarily get you there because if they know that's all you have, there are strategies to do nothing but to bleed the money out. I used to work for an attorney. My father was an attorney. So, I've seen those strategies and I know some of the practices to make the other side feel like they're going to spend a fortune. So, I you know, again, how do you counsel that? You can't tell people this can't be your last $100,000. and what happens if they believe they're wronged, they're going to tell you they'll spend less $100,000 when they shouldn't. Well, and too, as you say, another very important consideration for clients in this area of the law is understanding that if there is litigation and it's something that drags on for years and years, that is going to delay the ultimate distribution of those assets. Right. So, you're going to not only going to have litigation and the costs associated with it, but you're going to delay in actually getting what you are entitled to from this trust. Second component for them to understand is that in certain types of petitions, the trustee's entitled to use trust money for their legal fees.

34:30 So, arguably then, that means every dollar that's used by the trustee for their lawyer is a dollar out of the pocket of the beneficiary. Right.

34:40 So, that's always something that you know, beneficiaries need to understand that they're basically suing and they're taking money out of their own pocket. Well, so obviously this sounds very difficult, but at the same time you're in business, you're very successful at this. how do you get people

34:55 [laughter] and you love it, but how do you get the customer love enough to write a check for that kind of money? I it seems to me like you've got to have some pretty motivated clients to put together a business. Well, I mean, you know early on based on that initial conversation about what it is that they're complaining about, what it is they ultimately want to get out of this. And then you just are going to tailor your representation based upon what they're saying. So, you know, you have your initial retainer and then you work from that. and you always try to get cases resolved short of litigation meaning trials. But in some cases, you know, you have to go to trial because the other side is unreasonable or there's just a situation where both sides are very confident about their position. And so, you say, okay, we have no choice but to have that judge make the decision for us. So. And I know in working with litigation attorneys that the good ones always have the kind of seeming attitude like they really don't want to go to trial. Like when I was thinking, well, that's kind of odd. Like they really don't want to litigate in that they do their best to help their client avoid it, which is the best outcome. yet that's their business. It almost seems to me the industry is kind of odd that there should be maybe the avoid litigation attorney and then they just turn over. And I do know you probably get referrals. You probably do get referrals from other attorneys. But even in that process, you're still I don't I can't speak to you personally, but often times attorneys in your position still want to avoid litigation and hope you can settle before it gets there.

36:30 Talk about that mindset. How do you manage how do you manage that? Well, I mean, I do see [snorts] quite often where, you know, it's it's a probate type lawyer or even estate planning lawyer who will go ahead because they're the ones that have the relationship with the client creating the trust, etc. And they'll say, okay, I'll handle the litigation for you. Well, if they're not litigators and or trial attorneys, they can you know, that that that dynamic can really not [snorts] work that well. Right.

37:00 But from my perspective, you know, we handle cases all the way through appeals. And I will try whatever case that comes my way. I love trials. But if it's in the client's best interest to settle one way or the other, that's always something that we're going to recommend because like I said a minute ago, you have control over the outcome. Right.

37:24 Not get exactly what you want. You won't hit that home run like you could at trial, but at least you control the outcome and you're done. You have finality. You've stopped the time expense on waiting for a trial date, waiting for appeals, and you've also stopped the legal fees. Whereas if you need to go for whatever reason through the trial, I'm happy to do that. So, it's it's something that you kind of always discuss both sides of it, settling versus trying the case. And it just is a matter of you know, as you progress through the litigation, what is it that's necessary to get to that end result? Well, look, I obviously are wealth of information and we have covered about half of your presentation material. We've got a little bit longer, at least longer than I measured with you. I really appreciate your time today. Andrew Kienle is a litigation attorney based in Orange County serving throughout the state of California. and for more information, you can reach him. The law firm is Hart Kienle Pentecost. It's hkplawfirm.com. And his information contact information is on the screen. He's a managing partner at the firm. And I just want to thank you so much for your time today and educating us on the costs and some of the practices to avoid and then when it's appropriate to maybe raise your hand and say we need some help. Thank you so much for your time today, Andrew. I really appreciate it.

38:47 Absolutely. Great talking with you. And for the rest of you, this is [The Estate Planning Podcast]. We get together every week and interview most commonly estate planning attorneys, in this case litigation attorney, or other vendors that help us in our practice with our clients or as a real estate agent helps us with our clients as well. if you like this, please make some comments, like what else you'd like to see. If you know an attorney that you'd like to be interviewed, let me know as well. If I can help in any way, I'm at Bill Gross Probate on social media. As always, make today your best day ever. Thanks.