News of family trust, estate and probate disputes does not always travel fast. The sounds of family battles are initially muted by disbelief, family shame and reticence to fight against a family member amidst the grief of the moment. Our instinct is often that the dignity and desire for family unity will overcome disharmony and unresolved family differences.
Hackard Law often gets retained when these seething disputes are not resolved early in the process of trust and estate administration. Not everyone approves of this. History is full of armchair commentators who think that the "last wishes" of the decedent, however vulnerable or unduly influenced, should be honored. Trust and estate wrongdoers are especially adamant that their representatives "get on with the job" of transferring assets without the interference of the disinherited or former beneficiaries.
Those who initiate conflict in estate disputes are those with the most to gain. Long named beneficiaries of a parent's trust - those named in wills or trusts before undue influence - become the plaintiffs or petitioners in actions to reverse the effects of undue influence or wrongdoing. We are often told that someone's got to fight this. This is wrong and we need to make it right.
Nowadays estate fights go far beyond the will contests that were pervasive early in my career. In those days federal estate taxes, California inheritance taxes and probate fees were sizable. Since then more and more Californians are putting their assets in revocable living trusts. Titles to real estate, bank accounts, securities and other assets are placed in a trust while the owner is still alive. The trust document instructs successor trustees for the management and distributions of trust assets after the original trust maker or settlor's death.
The ease and utility of the creation and modification of living trusts may at times be their downfall. The maker of the trust, sometimes called the trustor or settlor, is presumed to be of sound mind or have capacity both at the making and changing of the trust. This can be fertile ground for a wrongdoer who sees and takes advantage of the maker's vulnerability.
Wrongdoers and sometimes estate planning attorneys may feel secure in trust changes if the maker had capacity to make the change. Fortunately legislative and judicial recognition of the elements of undue influence and elder financial abuse have allowed trust, estate and elder financial abuse litigators like those at Hackard Law to take the simple findings of capacity off center stage and instead focus on the statutorily defined elements of elder vulnerability to undue influence. Now such factors include not just capacity but illness, disability, injury, age, education, impaired mental abilities, emotional distress, isolation and dependency. We've also seen cases where family expectations, cultural expectations, and exploitation of alcoholism or substance abuse played a role in taking advantage of a vulnerable elder.
Changes and updates to undue influence and elder financial abuse law have interfered with estate wrongdoers smooth path to taking a decedent's assets. Estate and trust litigants may have myriad reactions to the disturbing details of an estate wrongdoer. Wrongdoers' actions clothed in silence will usually be exposed in the light of the lawsuit discovery process.
Estate, trust, and elder financial abuse litigation unfolds in various scenarios. Estate participants become entangled in a process that their lawyers grapple with in California Superior Courts' probate or civil divisions. Access to the court system itself can become problematical because of the expense of litigation. California Trust and estate litigation law firms like Hackard Law often work with plaintiffs and petitioners on a contingency fee basis - a fee arrangement with a number of California law requirements. Such attorney-client fee arrangements help impoverished wronged beneficiaries to get their day in court.
Looking at the wealth of experience gained over 40 years of practice with clients from across California, it is hard to underestimate the profound cultural, demographic and economic changes affecting our state. In 1976 the population of California was about 22 million people and is now over 40 million. The population of Los Angeles County was then 7.2 million and is now over 10.2 million. California's elderly population (age 60 and over) is expected to grow more than twice as fast as the total population. The elderly, of course, are the focus of much estate, trust and probate litigation. Trust lawsuits and elder financial abuse are a rapidly growing area of the law powered by demographic and statutory shifts.
So how do these disputes evolve? Beneficiaries are left out of a will or trust because of a new or existing beneficiary's undue influence on a vulnerable elder. Such beneficial interest exclusion may involve ongoing family disputes, sibling rivalries, stepparents, alcohol or drug dependent children or caretakers. Excluded beneficiaries may be geographically distant from a parent and the distance might be fodder for a closer relative to fan resentment against an out of town or out of state child. Such resentments may also occur where a parent has remarried and the new spouse favors his or her children over the natural children of the parent. The remarried are especially vulnerable to "sweetheart wills and trusts" drafted by the new spouse's attorney. Such trusts often empower the survivor to pull all assets out of the trust at the death of the decedent spouse. It doesn't take long for the natural children of the decedent to read the sign of the times - their beneficial interest is made of sand - easily scattered by the actions of the survivor.
The particularities of disputed trust and estate litigation is a vast as our population and geography. At Hackard Law we find that our clients are heavily represented in Los Angeles, Sacramento and the Bay Area. Our Los Angeles clients are only a phone call and a quick flight away. Our Northern California litigation depth is both a result of our geographic presence and decades of appearances in Sacramento and Bay Area Superior Courts. If you have an estate, trust or elder financial abuse matter in California and you would like to discuss it with experienced counsel, call us at 916 313-3030. We'll be happy to speak with you.