Whenever a person leaves a disproportionate share of his or her assets to a caregiver or friend, or only one or two of the person’s natural heirs, leaving out others, the disappointed would-be beneficiaries are likely to cry “undue influence.” This argument is often the basis of a will or trust contest. Sometimes close friends or family will attempt to get the court to set aside the transfer of an asset, like real estate, investments, or other property, while the victim is still alive, by claiming that the transaction was the product of undue influence.
It is a good idea to work with a California elder abuse attorney, whether you are going forward with a claim of undue influence against someone or defending yourself from accusations. Undue influence cases are complicated, sophisticated matters involving California statutes and evidence.
How California Statutes Define Undue Influence in Elder Law Cases
The courts evaluate multiple factors when deciding whether someone exerted inappropriate control over an aged person. The undue influence must cause the older adult to take an action or refrain from acting, and thereby achieve an inequitable result.
The court will look at some or all of the following elements to determine if someone is liable for overcoming the older adult’s free will by using excessive persuasion:
- Whether the victim was vulnerable. This factor assumes that the unduly influenced older person was the victim. The influencer must have known or should have known of the victim’s vulnerability, which can include things like impaired cognitive function, age, education, dependency on the influencer, isolation, illness or injury, and incapacity.
- The apparent authority of the alleged influencer. The court will evaluate the relationship between the influencer and the older adult. Apparent authority can be a status of caregiver, financial fiduciary, healthcare worker, spiritual advisor, family member, close friend, or some other relationship.
- Tactics the influencer used, like intimidation, coercion, or affection. Some influencers withhold food, water, sleep, or medication until the victim does what the abuser wants. Isolating the victim from visitors and outside communication, or from information, are additional strategies that indicate undue influence. Courts also look at whether changes in property or personal rights happened suddenly, in secret, under unusual circumstances, or at the initiation of the influencer.
- An inequitable result. The final element the courts consider is whether the influence caused an unfair or inappropriate outcome. When a senior suddenly changes his or her will or living trust, such as by cutting out the previous beneficiaries in a significant departure from the victim’s prior intent, or the older adult suffers adverse economic consequences as a result of the action, the court can view these facts as evidence of possible undue influence.
You must show more than just an inequitable result to win an undue influence claim. The unfair outcome must be the consequence of inappropriate conduct by the influencer.
Sometimes an older person changes the beneficiaries of a previous will or trust because of abandonment, neglect, or other mistreatment by those individuals – or even based simply on the older person’s change in feelings or beliefs about those prior beneficiaries. These changes are not enough, by themselves, to set aside the disputed transactions. The disinherited ones must prove that the person who receives the older adult’s bounty did something wrong to achieve that result.Time is of the essence if your loved one was the victim of undue influence, causing them to change their estate plan or transfer their assets to benefit the undue influencer. You might be able to recover some of the assets if you do not wait too long. Talk with our California elder law attorneys today. Our California elder law attorneys can help you take action to protect your loved one and try to reclaim the ill-gotten gains.
It can be expensive and time-consuming to take an estate through the probate courts in California. There are many fees set by the Probate Code that will come out of the estate before the beneficiaries receive a penny. Sometimes, people have to sell the family home or farm to pay the probate costs.
Many people could avoid the need for probate with some thoughtful estate planning. Loew Law Group’s California estate planning attorneys can help you set up a plan to help you and your heirs.
Our experienced probate attorneys are happy to help you and your family through the difficult probate administration process, if a court proceeding becomes necessary. But we’re also here to help you plan ahead, and avoid this outcome for your own estate if possible.
Who Has to Go Through Probate
Your family will have to go through probate court to get your assets if your estate is worth more than $166,250 – unless you took steps to avoid probate, like setting up a living trust or arranging for the transfer of assets outside of probate. The court will charge around $400 for the filing fee to start the probate case. You will have to pay a variety of additional expenses, like obtaining certified copies of any court documents you need, and publishing notice of the probate in a local newspaper.
If the estate has a value of less than $166,250, you usually do not have to go through formal probate proceedings. But for assets of greater value, a probate may be required. Two types of probate cases go through the probate courts in California – estates in which the decedent left a valid will, and intestate estates, where the deceased person did not have a valid will or trust.
Statutory Probate Fees
California sets statutory attorney and personal representative fees for cases that go through the probate courts. Both the probate attorney and the personal representative can put in a claim for fees.
If there are any disputes about who will receive which assets and what proportion of the items, the attorney fees can skyrocket well above the number shown above. Work performed by attorneys to resolve such disputes is considered to be “extraordinary services,” for which an hourly fee is typically charged on top of the statutory probate fees. Your family will only get what is left after the payment of all of the fees and expenses.
Also, the “value” of the estate for purposes of calculating the fees is not the net value. Let’s say that the estate includes a $1,000,000 house. Although the property has a $750,000 mortgage, the court will base the fees for the personal representative and probate attorney on the $1,000,000 amount, not on the net value of $250,000.
Another Real Cost of Having to Go Through Probate in California
Another “cost” of having to go through probate in California is the hardship your family can experience when they have to wait a year or two before they receive the assets from your estate. Your spouse, children, and other loved ones might have to struggle to make ends meet while they are dealing with the grief of losing you.
You can spare your family both the financial and time costs of probate in California if you set up an estate plan designed to avoid probate. Talk with our California estate planning attorneys today. Our California estate planning attorneys can help you create the documents you need to protect your loved ones and your estate.
Redwood City, CA (Law Firm Newswire) August 20, 2019 – The San Mateo County Law Library Foundation is hosting a cocktail party and networking fundraiser on Thursday, September 5, 2019 at the historic Kohl Mansion in Burlingame. The event will be from 5:00 – 8:00 pm. and will honor featured speaker Congresswoman Jackie Speier.
Jeffrey R. Loew, principal of Loew Law Group and President of the Law Library Foundation since it was established in 2016, will speak about the Foundation’s progress over the past three years, and present Congresswoman Speier with the Foundation’s first annual “Access to Justice” Award. Loew Law Group is also proud to serve as a featured sponsor of the event.
All proceeds from the event will support the San Mateo County Law Library, which is facing a financial crisis caused by a reduction in funding and increase in costs.
The San Mateo County Law Library (SMCLL) was established in 1916 to carry out the California Legislature’s County Law Library Statute of 1891, which requires the county to provide legal facilities and services at no charge, and mandates access to the library by county citizens. After more than one hundred years, the Law Library continues to offer free access to justice for the community and serves nearly 9,000 users annually. But the Law Library requires the community’s continued support to maintain these services.
The presenting sponsors for this fundraising event are:
o Corey, Luzaich, De Ghetaldi & Riddle LLP
o Cotchett Pitre & McCarthy, LLP
“The Foundation and its Board are very excited to honor Congresswoman Jackie Speier at our upcoming event. Jackie’s work on behalf of the community has included tremendous support for our Law Library, including singling out the Law Library for commendation before the 2014 U.S. Congress. Our Foundation Board found it most appropriate to give her this award of distinction. It is a happy coincidence that Jackie is a notable Mercy High School Burlingame Alumna (MHSBA), and that the High School still resides at the Kohl Mansion today.” – Jeff Loew, President, San Mateo County Law Library Foundation
“Our Law Library is a tremendous asset to our community and yet there are still a lot people who don’t even know we exist. Our library is more than just a collection of legal books. It is about offering access to justice through diversity, equity, and inclusion by having prohibitively expensive materials available to anyone who wants to use them. Our goal for our fundraiser is to raise awareness of the San Mateo County Law Library and let the community know that our staff is happy to help when a legal issue comes up and you don’t know where to start.”—Caroline Bracco, Library Director
Corporate sponsorships are still available. To register, donate or for more information, visit www.smclawlibraryfundraiser.eventbrite.com
Jeffrey R. Loew
President, San Mateo County Law Library Foundation
Tel. (650) 397-8700
(888)392-4725 ext. 702
About the San Mateo County Law Library
The San Mateo County Law Library (SMCLL) provides the community with a variety of services to aid in locating and understanding the laws that people come into contact with every day. The mission of the SMCLL is to provide access to all persons interested in the law or in need of legal assistance. The SMCLL serves the bench, bar, and citizens of San Mateo County. The California County Law Library system was established in 1891 and continues to offer the tools for citizens to exercise their right of due process. Located across the street from the San Mateo County Superior Courthouse in Redwood City, the Library is a practice library, focusing on print and electronic materials for attorneys and the general public to aid them in the understanding of the legal process. Use of the Library’s collection is free to all who enter the Library.
About the San Mateo County Law Library Foundation
The mission of the Foundation is to ensure continued access to justice for all people. The Foundation was created in 2016 to assist and promote the Law Library through outreach, fundraising, advocacy and volunteerism. The foundation is a 501(c)(3) organization that accepts donations on behalf of and for the benefit of the San Mateo County Law Library. Donations help offset the Law Library’s current financial crisis and help the Library assist all people, whether members of the general public or local attorneys, in their efforts to use the legal system effectively.