Lafayette Estate Litigation Blog

Stepmothers and stepchildren keep estate litigation lawyers busy

If you ask most estate planning attorneys about the parties that are most apt to get involved in contested will disputes, they'll likely tell you that they see more than their fair share of ones between stepchildren and their stepmothers.

Research that has been done regarding stepparents shows that stepmothers often live far longer than stepfathers. This complicates things when it comes to settling an estate, especially since studies have shown that only 20 percent of stepchildren who are adults claim to have a close relationship with their stepmoms. Most of those relationships don't improve with time.

What are the common reasons executors get sued?

When a testator, or the person who is drafting a will, goes to select the executor of their estate, they're often advised to pick someone who is both loyal and trustworthy. They're told to do this to make sure that their final wishes have the best chance of being honored and also because there's often significant wealth that they are entrusted to handle. Executors who have poorly handled their responsibilities have been sued.

Although a Lafayette testator can appoint a licensed California professional such as an attorney, financial planner or accountant to the role of executor, few do. Instead, they have a trusted friend or relative handle those responsibilities. The individual that they appoint to this role often hasn't been trained as to what they're supposed to do. They often make mistakes in distributing assets or reporting information to the probate court.

What you need to know before mounting a will contest

It can be quite jarring to learn upon a relative's passing that you did not get an expected inheritance. You may be especially upset that your relative never explained their decision to disinherit you.

When faced with such scenarios, some people consider mounting a will challenge. There are instances where that action is appropriate, but those are rarer than one might realize.

Completing probate often results in an executor's fee

When a loved one asked you to act as executor of his or her will, you may have accepted the role without fully understanding the extent of the responsibility that you would hold. Now that your loved one has passed away, you have gained more information on the tasks ahead of you. Understandably, you may feel a bit overwhelmed.

Because seeing an estate through probate and handling the necessary steps associated with settling final affairs is immensely trying, the executor often receives some sort of compensation for his or her services. That compensation, which is also known as an executor's fee, differs depending on the circumstances and state laws.

California laws that protect the elderly from undue influence

Over the past few years, there has been an uptick in the number of individuals attempting to befriend elderly persons in order to extort money from them. This has led California lawmakers to draft a number of bills aimed at protecting this vulnerable population, and more specifically, those who have a conservator who manages their finances. At least four of those have since been signed into law.

The most recent of those of those was Senate Bill 1191, which was originally proposed by two California Democrats and signed into law in 2018. It called for law enforcement manuals statewide to be updated to reflect that isolation is a type of abuse and any ill-treatment toward elderly individuals is a prosecutable crime.

Seniors must be proactive at fighting against financial abuse

A report published just this month by the Securities and Exchange Commission (SEC) captures how at least 6.6 percent of Americans aged 65 or over have lost money after having been defrauded or exploited. Given that an estimated 10,000 new people turn 65 on a daily basis, the SEC contends that the number of seniors that will likely face elder financial abuse is expected to rise.

One way in which seniors can protect themselves from financial exploitation is by avoiding using cash and instead using debit or credit cards. By doing the latter, it leaves behind a paper trail. It can make it easier for banks to reverse unauthorized charges, help police identify the culprits who engaged in impropriety and simply allow you to keep better track of what comes and goes out of your account.

Holographic wills are only valid in California in 4 situations

While different ideas may come to mind when you hear the term "holographic will," it simply refers to a will that has been handwritten as opposed to being typed out. They are most commonly drafted in situations in which an individual knows that they're nearing death, and they're not surrounded by anyone else to help type or witness the document being written. Such wills are valid in California under select circumstances.

In order to be considered valid in California, section 6111 of the California probate code requires that a holographic will to meet four different criteria.

Proving undue influence occurred isn't easy

When you sign your will, it's best to do so in the presence of witnesses. Some jurisdictions may even require this. If yours does, then there may be certain criteria for choosing your witnesses. All of these requirements exist to ensure that the testator, or person drafting the will, has testamentary capacity, or knows what they're signing and that no one has undue influence over them.

California's Probate Code 21380(a) describes how anyone maintaining a relationship with the testator can be deemed to have exerted undue influence over them. If someone is engaged in a fiduciary relationship with the transferor at the time of the signing, whether a shareholder, business partner or employee, they must be closely scrutinized to see if they exerted some type of undue influence over the testator.

Executor mistakes could result in probate litigation

Estates are often at risk of facing conflict from surviving family members or other parties associated with the estate. Unfortunately, some probate cases may be more predisposed to fights, simply because of the family dynamic. Of course, problems could also come about if you make mistakes while acting as executor of the estate.

Because the probate process is long and complex, a considerable amount of room exists for errors. Even if you think you are taking action to help the estate, your good intentions could cause more harm than good. If a mistake is serious enough, you may wind up having to deal with probate litigation.

What makes an elderly person more open to financial abuse?

Those who commit financial abuse pick their targets carefully. They look for certain signs that show them that it will be easier to get what they want.

For family members of elderly relatives who receive assistance from caregivers, it is important to look for these same signs that may indicate that the person is being abused financially. This abuse could come from a caregiver or another family member. Some warning signs include the following:

  • The person is physically not in optimal health. This makes them vulnerable to exploitation from caregivers who threaten to withhold services unless they get what they're seeking.
  • The person cannot take care of their own home. Some experts warn that repair workers may take advantage of elderly people by claiming that repairs need to be done when they do not, or by claiming they made repairs that they never made.
  • The person has mental and emotional challenges. The elderly person may suffer from dementia or be confused and forgetful due to another degenerative brain disease. People who are close to them may use this for their own gain.
  • The person does not know much about their own finances. A caregiver may be in charge of paying bills and handling money. If the elderly person doesn't know about their own financial situation, that can open the door to abuse.
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Pedder, Hesseltine, Walker & Toth, LLP | Est. 1995

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Lafayette, CA 94549

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