A San Francisco Probate Litigation Lawyer with the Interests of the Elderly at Heart
When an individual dies with a will, his or her estate goes into probate — the process of distributing the decedent’s assets to his or her heirs under supervision of the Probate Court. The primary purpose of probate is to administer the decedent’s estate as he or she would have wished according to the will’s terms. To ensure that the decedent’s wishes are respected, California law places a strict set of requirements on wills to ensure their validity. The three principal requirements for a valid will in California are that it be in writing, that the testator is of sound mind, and that the testator signs the will in the presence of at least two witnesses. But even though those requirements may sound simple, many things can go wrong in the estate planning process or even at the Will execution, resulting in the decedent’s will or other estate planning documents being challenged upon their death, thus ending up in probate court. For more information about probate litigation, read on, or contact an attorney at a California estate planning law firm.
Financial Elder Abuse in the Probate Context
Financial elder abuse occurs where the perpetrator takes advantage of an elderly victim through the theft or misappropriation of their financial assets. It can happen at any point in an elder’s life, but one of the most insidious forms of financial elder abuse is within the estate planning and probate context. Some of the most common forms of this type of abuse are highlighted below.
Fraud and Forgery
Fraud occurs where the perpetrator makes a misrepresentation of a material fact that induces the victim to act (or refrain from acting) in a way that they would not have were it not for the perpetrator’s misrepresentation. In the context of estate planning, it could occur where the perpetrator lies to the victim to get her to change her will to benefit the perpetrator, such as by telling the victim that a relative is dead when that relative is, in fact, alive. A similar form of financial elder abuse occurs through forgery, such as where the perpetrator forges the victim’s signature on a will or changes the terms of the victim’s will without the victim’s knowledge.
One of the three principal requirements for a legally valid will is that the testator must be of sound mind and execute the will voluntarily. But in some cases, wills may be made under duress, which occurs where the perpetrator uses intimidation, violence or threats of violence to coerce the testator into making certain dispositions of property in her will. When that happens, it cannot be said that the testator was acting voluntarily, which can result in the will being invalid.
Undue influence is similar to duress in that it involves one person overpowering the free will of another person, but it is more insidious and subtle. It occurs when the perpetrator is in a position of power or control over the victim and exercises that authority to influence the victim to make dispositions of property in her will that she would not have made otherwise. The elderly are particularly vulnerable to this form of financial elder abuse, as they typically rely on others for some or all of their basic needs and frequently suffer diminished mental capacity. Like duress, a will procured as a result of undue influence is invalid.
Breach of Trustee’s Fiduciary Duty
When a trust is part of an elder’s estate plan, he or she appoints a trustee to manage assets of the trust for the benefit of the beneficiaries. Trustees owe a fiduciary duty to those beneficiaries, which means that he or she must act solely in their best interests. This includes a duty of loyalty, a duty to make prudent decisions, and a duty of full disclosure. Trustees can breach that duty in various ways, such as by self-dealing (i.e., using the assets of the trust for personal reasons), mismanaging the trusts’ assets, withholding information or refusing to account for money received, or conspiring to benefit one or more of the beneficiaries at the expense of the other beneficiaries. Breach of a trustee’s fiduciary duty can be considered financial elder abuse because it involves the misappropriation of assets that the elder placed in the perpetrator’s trust.
Power of Attorney Corruption
A power of attorney agreement is a legal document that allows one person (the agent) to make a wide variety of decisions on behalf of another person (the principal) if that person becomes incapacitated. They are very common estate planning tools used among the elderly to manage their assets when they enter an irreparable cognitive decline. Like trustees, agents owe a fiduciary duty to their principals, but power of attorney corruption can also occur when agents abuse their power by misappropriating their principal’s assets.
Do You Need a San Francisco Elder Lawyer for Probate Litigation Issues?
There is no strict requirement to hire a lawyer to handle a probate litigation issue. However, you should strongly consider it, as the probate laws are complex, and the stakes in this type of litigation can be extraordinarily high. Probate attorneys know the law and procedure governing the probate courts far better than the average person and are much more capable of obtaining their clients’ desired outcomes than their clients would be on their own.
When Should You Contact an California Estate Attorney?
Every situation is different, and it can be challenging to determine whether an issue rises to a level of seriousness that requires an attorney. But in the context of estate planning, there are a few key signs that elder abuse may be occurring. These include:
- An elder suddenly and radically alerting her will
- A will that makes unusual dispositions of property
- Strange or unexplained transactions on an elder’s accounts
- A darkening of an elder’s mood or demeanor (which can indicate duress)
- The sudden appearance of a stranger who attempts to influence an elder’s financial decisions
These, however, are only a few of the red flags that can indicate that an elder is suffering financial elder abuse.
At Evans Law Firm, Our San Francisco Estate Planning Lawyers are also Trained in Elder Abuse
If you suspect that a loved one is suffering financial elder abuse that may affect his or her estate planning documents, you should move swiftly to minimize any potential damage. For more information, please contact an attorney at the Evans Law Firm, a San Francisco-based estate planning law firm serving clients throughout California., by filling out our online form or calling us at 415-441-8669.