Most people do not think about wills and trust until they are much older. Death is an unpleasant idea, and even considering the fact that one day we will not be with our loved ones is terrifying to many folks. With that being said, wills and trusts are extremely important to ensure that one’s death does not lead to arguments about the remaining finances among the family that has lost their loved one. Such arguments over what persons are entitled to receive the deceased person’s assets are commonly referred to as inheritance disputes.
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, giving them the ability to give away money and assets until they ultimately die. This can be extremely problematic given the fact that in the time leading up to an elder’s death, elders often suffer from cognitive impairment and lack of mental competence rendering them unable to make decisions and vouch for what they had originally planned years prior, when they had a full mental capacity.
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. This can prove to be very problematic, in which case the rest of the family is left to fight for what is rightfully theirs. Fortunately, Attorney Bryant and his team want to ensure that the decedent’s assets are distributed to the right individuals as the decedent, or now incompetent person, had desired when they had a full mental capacity.
A will is regarded as being a testamentary document, meaning that in order to be valid, it must meet certain requirements. The first of those requirements include the fact that a will must be signed by the person whose will it is (i.e., the testator) and this signing must be viewed by two witnesses in order to be deemed a valid California will. A holographic will is also valid in those cases of which there are 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 include 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, you should look into will and trust fraud. You should definitely look into your questions sooner rather than later to ensure that fraud has not taken place, and that your deceased loved one’s wishes in regards to their leftover finances are fulfilled.
If you find yourself asking these sort of questions, it is best to consult an attorney such as Joel Bryant to ensure that there is no foul play, as time is of the essence when it comes to these cases, given that money can come and go quickly, and the perpetrator can cover their trail fast and secretively. 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 find out for you, such as:
Yes. In California, there are several types of will and trust fraud. One common type of trust fraud involves a situation where the trustee of the trust engages in self-dealing or other dishonest conduct to the detriment of the beneficiaries of the trust. The trustee of a trust owes a fiduciary duty to the beneficiaries of the trust. This means that the trustee must act in the best interest of the beneficiaries. If the trustee does not do so, 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 in his/her place.
With respect to wills, the executor or administrator of a will owes similar duties to the beneficiaries. If an executor or administrator violates those duties, the beneficiaries can file a lawsuit against the executor or administrator in court. The same type of conduct that constitutes trust fraud also constitutes will fraud when done by the executor or administrator of a will.
Another common type of will or trust fraud involves inheritance disputes. In this situation, a wrongdoer who coerces a person (most often an elderly person) to change his or her will or trust to benefit the wrongdoer. In most inheritance disputes, the elderly person has dementia or otherwise lacks mental capacity and is an easy target for the wrongdoer. Often, the wrongdoer coerces the elder to make the changes shortly before the elder’s death or while the elder is in the hospital. In other situations, the wrongdoer exerts undue influence (excessive persuasion) on the elder to get him or her to change his or her will or trust to benefit the wrongdoer. Elders with Alzheimer’s disease or another type of dementia are very vulnerable to undue influence.
When a wrongdoer engages in this type of trust fraud, the trustee or a beneficiary of the valid trust must promptly file a trust contest to invalidate the fraudulent trust in the proper probate court prior to expiration of the statute of limitations. The statute of limitations can be as short as 120 days. Similarly, with respect to will fraud, the executor or a beneficiary of the valid will must promptly file a will contest with the proper probate court 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 his or her will or trust and is the victim of will or trust fraud.
Similarly, some Inheritance Disputes may arise due to conflicts regarding interpretation 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 fraud or trustee fraud, Attorney Bryant and his experienced legal team can help you. Attorney Bryant is the California nursing home abuse lawyer, and he has successfully handled many will and trust fraud cases.
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. I can help you 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. I can help you 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. I can help you recover assets and seek reimbursement from the trustee.
If you have questions about your unique financial affairs case, contact the California Elder Abuse Lawyer Joel Bryant. His team of experienced trust fraud attorneys will fight for you and recover your assets. Call today to schedule a free consultation with a San Diego elder abuse lawyer.
I offer a no-charge consultation and handle will and trust fraud cases either on contingency (fees paid only from amounts recovered) or by the hour, depending on the situation. If you need a California attorney for will or trust fraud, or for theft or financial misdealing by a conservator or trustee for an elderly person, I can help you. You may also use the form below to contact me. I answer this form Monday through Friday, during the working day. (There may be a short delay if I am in court.) Please remember that for me to become your attorney , we must first have a written attorney-client agreement signed by both of us. I look forward to helping you. For more information or an appointment, please call me at (619) 239-7900 for a free legal consultation.
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