Having all the finances in order prior to a loved one’s death is always the best scenario, as it minimizes feuding over who has rights to what. However, even when prepared years in advance to avoid disputes, wills and trusts can still be changed all the way up until a loved one’s passing.
California law will generally assume competence among elderly individuals and give them the ability to give away money and assets until they die. This can be problematic when elders suffer from cognitive impairment and lack of mental competence, leaving them unable to make decisions and vouch for what they had originally planned.
Perpetrators of will or trust fraud often take advantage of an elder’s vulnerable state and trick or pressure them into altering the documents for the perpetrator’s own financial benefit. Fortunately, Attorney Bryant and his team want to ensure that the decedent’s assets are distributed to the right individuals as the decedent had desired when they had full mental capacity.
A will is regarded as a testamentary document, meaning that in order to be valid, it must meet certain requirements. A will must be signed by the person whose will it is (i.e., the testator), and the signing must be viewed by two witnesses. A holographic will is also valid in cases with no witnesses; however, all major terms of the will must be in the trustator’s own handwriting and signed by them. California wills are also never notarized, as it is meaningless. According to California state law, these are the only two acceptable forms of wills.
On the other hand, trusts may be oral or written. However, it is always better to have a written trust, as an oral one can be harder to prove valid. Written trusts must be signed by the person whose trust it is (i.e., the trustor), but that is all that is required to make them valid. For a trust, no witnesses or notarization of any kind is necessary. A majority of trusts are notarized, however, to prove that the individual singing it was the named settlor, but notarization is not a legal requirement for trusts in California.
There are many indicators that will or trust fraud may have taken place, but most involve a paper trail that can be covered up by the perpetrators after the elder has passed away, making the will and trust fraud harder to discover than other forms of elder abuse or neglect. However, if you find yourself asking certain questions, like the following, you should look into the possibility of will and trust fraud:
Here are some warning signs to look for:
There are also indicators of will or trust fraud that a forensic accountant may be able to investigate and uncover for you, such as:
If you find yourself asking these sort of questions or seeing these warning signs, it is best to consult a skilled elder financial abuse attorney immediately.
In California, there are several types of will and trust fraud. One common type involves a situation where the trustee engages in self-dealing or other dishonest conduct to the detriment of the trust’s beneficiaries. The trustee owes a fiduciary duty to the beneficiaries and must act in their best interest. If the trustee does not, the beneficiaries can file a lawsuit against the trustee in probate court. In that situation, the beneficiaries can recover monetary damages against the trustee and have the trustee removed by the court and a new trustee inserted.
With respect to wills, the executor or administrator owes similar duties to the beneficiaries. If an executor violates those duties, the beneficiaries can file a lawsuit against the executor. The same type of conduct that constitutes trust fraud also constitutes will fraud.
Another common type of will or trust fraud involves inheritance disputes. In this situation, a perpetrator coerces a person (most often an elderly person) to change their will or trust to benefit the perpetrator. Often, the wrongdoer coerces the elder to make the changes shortly before death or while the elder is in the hospital. In other situations, the wrongdoer exerts undue influence (excessive persuasion) on the elder to get them to change their will. Elders with Alzheimer’s disease or another type of dementia are very vulnerable to undue influence.
If the event of trust fraud, the trustee or a beneficiary of the valid trust must promptly file a trust contest to invalidate the fraudulent trust in probate court prior to the statute of limitations’ expiration. The statute of limitations can be as short as 120 days. Similarly, with will fraud, the executor or a beneficiary of the valid will must promptly file a will contest to invalidate the fraudulent will, and the statute of limitations can be even shorter. That is why it is very important to contact an elder law attorney with experience handling financial elder abuse cases immediately if you suspect that a friend, relative, or family member has been coerced or unduly influenced to change their will or trust.
Similarly, inheritance disputes may arise due to conflicting interpretations of multiple wills or trusts signed by the elder, or due to disagreements regarding the interpretation of confusing or complex language in a trust.
If your loved one changed their will or trust because they were misled, pressured, or under undue influence, or if they have lost assets or property due to conservator or trustee fraud, Attorney Bryant and his experienced legal team can help you. Call today to schedule a free consultation with a San Diego elder abuse lawyer.
Attorney Bryant can offer you skilled, highly experienced legal help for any of the following situations:
A change or addition is wrongful when there is pressure, lying, or taking advantage of an elder’s confusion, so the abuser ends up in line to inherit most or all of the assets. Attorney Bryant can help whether the elder is still living, or has already died and the will is being probated or the trust is being distributed.
The conservator breaches their fiduciary duty and steals or makes favorable deals for themselves from the elder’s assets or real estate. Attorney Bryant help recover assets and seek reimbursement from the conservator.
The trustee steals money, assets, or real estate from a trust set up to benefit the elder person. Joel Bryant can help you recover assets and seek reimbursement from the trustee.
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