Lafayette Estate Litigation Blog

California responds to the increased risk of financial abuse

California's fine weather and social protections make it a destination for more and more people. Senior citizens are flocking to the Golden State in unprecedented numbers to live their golden years in comfort and safety. Regrettably, some challenges remain for these Californians.

Although physical and emotional abuse are always priorities for prevention, elder citizens and other at-risk populations face assaults on their finances as well as their health and dignity. People who live alone, reside with their families or spend their time in nursing homes or assisted living facilities may be victims of fraud or undue influence.

What is a no contest clause?

Some people go to extreme lengths to keep others from fighting over their estate. They may worry that someone is going to challenge the will, and they'll include a "no contest" clause. What is this and how does it work?

As you can probably guess from the name, it attempts to make it impossible for someone to contest the will, at least without risk. The clause usually says that anyone who does so will be completely disinherited if they lose the challenge.

Surprises can cause sibling estate disputes

Many parents do not talk about estate planning with their children. Even so, the children may have certain things that they expect or that they have been counting on.

As such, when the estate plan includes significant surprises, it can often lead to disputes. The plan simply does not match up with their expectations, even if those expectations were never grounded in reality.

What is undue influence and how can it be avoided?

A study published in 2015 by True Link Financial suggested that the elderly lose as much as $36.48 billion annually in financial exploitation schemes. As many as two million Americans may be manipulated into giving others access to their assets each year.

The most common types of manipulation approaches that schemers use when dealing with this population is 'undue influence.' Mentally and physically ill individuals are particularly vulnerable to this type of manipulation that it often involves excessive demands being made, individuals being put under duress or being deceived.

Family conflicts can easily lead to probate litigation

After the death of a loved one, it can be a difficult time for many surviving family members. You may find yourself often reminiscing about the good times you shared with your loved one and likely also hoping that he or she left you some type of property as part of the estate plan that can give you a personal asset to hold onto for sentimental reasons.

While you may feel fine with receiving a small item, other individuals may not feel as content with such an outcome. In fact, family disputes over the contents of a will commonly take place during the probate proceedings. As a result, many inheritances can dwindle due to the need to cover litigation costs and other expenses.

What happens if you contest a will with a no-contest clause?

There are many things that could have implications for a person when he or she is challenging a will here in California. One is whether the will being contested contains a no-contest clause.

Such a clause, when in a will, typically directs that a person loses his or her inheritance under the will if he or she brings an unsuccessful contest against the will.

BEWARE ELDERS...

Recently in Northern California there have been an abnormally large number of police shootings. While we are firmly behind the police in most instances, a number of these shootings have proven to be outrageous. For example, we know of an elder who was having some mental difficulties and broke out some windows in his home and made a lot of noise. A neighbor called the police and here they come, two squad cars, seven officers, and guns drawn. Someone indicated they thought the elder had a gun. When the police arrived the elder was in the house yelling and screaming and running around banging on walls, etc. They yelled for him to come outside with his hands up and drop any gun that he had. Eventually the elder staggered outside on the front porch and started to walk off the top step and in his hand he had a regular broom which he was using as a walking aid. One of the officers yelled at him to put down the broom and another officer got shaky. (Apparently he was a new recruit) and shot the elder in the abdomen causing very serious injuries. After the officer had shot the elder, he was heard to pronounce, "oh, shit", obviously realizing he had shot an unarmed man. The police without waiting for an ambulance hustled the elder to emergency care and put him in a lock down room at the local hospital where he was treated but interrogated on a daily basis by the police before he was allowed any freedom. The papers were told to hush up the story. The elder has permanent damage and will have a colostomy bag throughout the rest of his life. The bottom line is if you are ever involved in a situation like this, be very careful, walk slowly, carry nothing, announce your intentions, tell the police that they should have their guns not on alert, etc. Innocent elders are easy game for trigger happy police.

BUDGET CRISIS A GOOD THING?

Because of the court budget crisis which has pushed the courts to cut back important services to attorneys and the public in general, many courts including Probate Court have adopted procedures to help alleviate court congestion by having qualified attorneys serve as pro tem judges and discovery facilitators without pay or "pro-tem". These are good programs. Our firm participates in these programs. It is hoped that attorneys will not attempt to "game" the system and abuse these services in an attempt to delay a case from moving forward in the system. An example of this would be to object to discovery such as a subpoena knowing that the issues would not be handled by the judge but referred to a pro-bono attorney to handle initially before it gets to a judge if needed and simply cause delay. 

ALZHEIMERS?

The average survival rate is eight years after being diagnosed with Alzheimer's - some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer's don't die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

REAL ESTATE SOARS

Recently one of our clients prevailed in a Will contest and as a result the Will she fought for was decided by the court to be the one to be probated. One of the assets in the probate estate was a piece of real estate in an impoverished part of Contra Costa County worth very little. We were able to find a realtor who was quite sharp and this realtor found a buyer for the property at a price we thought was more than reasonable. There were only two beneficiaries of the estate and of course, our client the executor felt that the price was right, but the other beneficiary who had lost the Will contest objected, indicating that he felt that the price was too low. Because of his objections, we had to go to get court approval for the sale which was already to close and in escrow and obviously it was inconvenient to postpone the sale to get court approval. Were we wrong. Real estate is so hot now in the Bay Area that even junk real estate value has exploded. At the sale the original purchaser finally prevailed but he had to ward off 9 overbids in Probate Department 14, Contra Costa County Superior Court. The Judge was like an auctioneer on that particular morning. The final sales value was almost 30% higher than the original sales figure. The extra work was more than compensated for and everybody went home happy, which is nice for a change.

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Pedder, Hesseltine, Walker & Toth, LLP | Est. 1995

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Lafayette, CA 94549

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