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Santa Rosa Litigation Law Blog

Wednesday, September 18, 2013

California Probate Code and Prevention of Financial Elder Abuse

Did you know that California law provides special rights and damages for elders who are taken advantage of financially---even when the person taking advantage is a direct family member, a close friend or a physical caretaker?  Subject to the facts of each case, including the status of the person taking advantage, the alleged perpetrator may have to prove by clear and convincing evidence that no fraud or undue influence was involved in the new gift or testamentary instrument.
 
Financial elder abuse cases often arise in the context of wills, trusts and other testamentary or contractual documents in which an elder is forced, manipulated or tricked into signing something extraneous to his or her formal estate plan. Many California elder abuse cases involve  "quit-claim deeds" for the transfer of real property, totten bank trusts, "pay-on-death" accounts and other suspicious bank/financial accounts which are set up or executed during the elder's later years and which are foreign or contradictory to the testamentary intentions the elder has always expressed.
 
Often these informal deeds, bank accounts or private contracts/agreements are not announced or made public until after the elder dies, making them difficult to set aside.
 
Unfortunately, many of the individuals who have had daily contact with or direct control over an ageing and vulnerable elder (e.g., physical care-taker, next-door neighbor, recent younger spouse, tenant on elder's property) are the same persons who end up with the unexpected and disproportionate share of the elder's estate/property.
 
Indeed, while the state of law is currently in flux, the California Probate Code has for years provided that specified types or categories of persons (such as "care custodians") were "disqualified" from receiving gifts or donative transfers per certain irrevocable documents, unless special conditions were met or the recipient could otherwise rebut a presumption of fraud or undue influence. [1]
 
Proving that a new beneficiary or gift recipient is a "disqualified person" or litigating issues of the presumption of fraud and undue influence (or rebutting fraud or undue influence) requires litigation counsel experienced in this complex and changing area of the law.
 
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[1]  See California Probate Code Sections 21350 and 21360.
 




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