Are you about to challenge or contest a trust in a Superior Court in California?
Whether you are filing in Sacramento, Los Angeles, Alameda, Santa Clara or Orange, then you should consider your battle plan. Have you retained a California trust attorney and opened the case? Before you get started, here are five things that you might consider.
Statutes of Limitation. If a beneficiary receives a trustee notice, they may have as little as 120 days in California on filing certain kinds of claims against a will or trust (CA Probate Code 16061.7). California courts do not favor those who delay. If you can “smell the coffee” and see that something is wrong, you may want to engage a lawyer and start making an effort at securing your rights.
Payment. Do you know how you are going to pay your CA trust litigator? In general, there are three different approaches to payment. A flat fee is easy to explain but extremely difficult to negotiate. A flat fee may bring certainty, but it also brings risk – estate litigation can be somewhat unpredictable – it is hard to put a flat fee arrangement on a litigated matter. An hourly fee is often used – it is straightforward but can create anxiety. Just how much is this lawsuit going to cost? Contingency fees are also available in California probate, estate and trust litigation. Whatever fee approach is taken, it is a point of discussion between you and your attorney.
A Plan of Attack. Don’t just go in assuming that your search of the Internet gave you a bullet-proof theory of challenge or contest. You need to have a game plan before going to court – it might be a game plan that changes with circumstances – but it is still important to start with a game plan. Is this a case about capacity? Undue influence? Fraud? Forgery? Whatever the issue, have a plan of attack.
Decide if you want a jury. You have a right to a California jury for any action that is “at law” but not for equitable matters. This is an area that even challenges lawyers. This is something that takes thought and legal knowledge. Under the California Elder Abuse and Dependent Adult Civil Protection Act, plaintiffs can request a jury trial. Many California Will and Trust litigators like those of us at Hackard Law favor a jury when possible.
Gather the documents. This is a matter of homework. We prepare a timeline for every case that we are engaged. This timeline depends upon good information. Good information is dependent upon supporting documents when there are supporting documents. We can address this in more detail in a meeting.
Attorney Michael Hackard
Michael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]
Video: Key Tips to Fight Wrongful House Transfers | CA Estate & Trust Litigation
Wrongful House Transfers
What can you do if someone’s hijacked your family’s California estate or trust assets? Perhaps a wrongdoer lied, cheated or stole their way to taking over the family home. Maybe it was a stepmother, or perhaps even a next-door neighbor.
The damage caused to families by lies, deception and betrayal is often impossible to quantify in purely financial terms. How do you calculate the pain a wrongdoer inflicts by isolating a sick or dying elderly loved one from other relatives – and all in order to gain some monetary advantage? Many times the rightful heirs or beneficiaries of a California estate or trust are tempted to simply “move on” and accept they’ve been effectively robbed out of their inheritance.
WARNING: Letting the wrongdoer get away looting a trust isn’t only giving up hope, it’s inviting them to continue lying, stealing and cheating.
Don’t let wrongdoers win. If you’ve been treated unfairly over a family trust, do not give up – justice and recovery are possible when the truth is on your side and you can tell your story to the court. Abused California trust beneficiaries and disinherited heirs have the right to challenge trusts and wills that were created or modified as a result of the undue influence of others on the maker of the trust (settlor) or the will (testator).
Under California Welfare & Institutions Code 15610.70, undue influence is defined as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” The law is designed to protect all of us – individuals, families and communities – from fraud, manipulation and financial elder abuse. Such crimes against the elderly and incapacitated have become all too common a phenomenon in our state, and it’s time to stop wrongdoers before they can strike again.
Here at Hackard Law, our job as trust litigation lawyers starts with listening. When we listen to children, brothers, sisters or grandchildren of victims of financial elder abuse, we often hear a story of parents or family members who experience unavoidable problems through no fault of their own. This injustice is caused by the actions of others who betray a trust or fail to keep promises made to the victim.
Common Scenarios that lead to Trust Litigation
While protecting the confidence of clients, we will share some of the stories, appropriately modified as to particulars but not as to theme, that we commonly hear in financial elder abuse cases. Trust litigation is the story of human nature and its foibles. Contested trusts are often colorful and rich in human drama. California trust lawsuits frequently concern disputes between abused beneficiaries, successor trustees and new beneficiaries to a trust influenced by wrongdoing against the trust maker (settlor or trustor). Some examples follow:
“My brother is hiding my father’s trust and won’t share a copy with me.”
Time and again we see this circumstance. The light of day is the enemy of a lie, and it is often a lie used to cover the wrongdoing of an undue influencer. More often than not, our actions against a wrongdoer trustee will force him or her to give us a copy of the trust. This is usually the beginning of a process of discovery. It doesn’t take long for us to create a timeline that often starts with the first wrongdoing.
“My sister had my mother’s power of attorney and transferred my mother’s house to her three months before my mother passed away.”
Every so often a trust fight encompasses not only a dispute over the changing of the trust, but also the abuse of a power of attorney. This type of fight involves two wrongs – both committed by the same person. Holders of powers of attorney may often have a long and colorful pattern of abuse. The use of a parent’s bank account to benefit the holder is often seen. Transporting a vulnerable parent to an attorney chosen by the new beneficiary is common enough that there is a good deal of literature describing its problems.
“Our stepmother had our father change his will and trust while he was in the hospital in his last days of battling cancer.”
We’ve listened to this story or its variations several times. Signatures of the victim are often telltale – handwriting itself can convey a lot when matched up with a person’s condition at the time. There may be elaborate signatures that look like they’ve been written by a penmanship teacher, resembling nothing like that of the testator or settlor, or just scribbles that appear to be made by a blindfolded near-comatose victim. Such signatures often outrage family members – bringing fuel to the fire of indignation common to the family members of victims of financial elder abuse.
“Aunt Betty, unemployed, is the trustee of my father’s trust and has recently purchased a new car and taken her daughter to Europe on a cruise. She will not distribute my father’s assets to his beneficiaries.”
California Probate Code Section 16002 states specifically that “the trustee has a duty to administer the trust solely in the interest of the beneficiaries.” Cruises, new cars, vacation homes, jewelry, boats, and snowmobiles are just some of the things that we have seen purchased with wrongfully taken assets by a bad trustee or financial elder abuser. The self-indulgence of a wrongdoer is many times seen soon after the loss of a loved one. All of the sudden the wrongdoer begins to think they’re living out Lifestyles of the Rich and Famous. Such perpetrators can also be incredibly generous, treating others to lavish vacations, meals and gifts – after all, they’re spending someone else’s money.
“My uncle’s nephew ingratiated himself with my uncle during my uncle’s hospice care and had my uncle transfer all of this bank accounts and house to my nephew.”
We’ve heard this one a number of times. A vulnerable victim may be a magnet for wrongdoing. Long distance from the vulnerable is little challenge to a wrongdoer with a plane ticket. Sometimes distant relatives have a way of getting awfully close to a dying relative who has assets and property seemingly up for grabs.
“My mother’s neighbor got control of my mother’s trust and had it changed to benefit her and her children. She now says that my mother wanted it that way because I wouldn’t visit my mother. This is a lie. I visited my mother regularly but she had dementia and would not remember that I visited.”
Dementia and its ill effects are a prime opportunity for a bad actor. Locking children out of an ill parent’s life (a tactic known as isolation) is only one tool of wrongdoing – the same effect may be accomplished by planting lies with the victim – lies easily believed when short-term memory is virtually nil.
Given the common stories, what tips may be valuable to family considering trust litigation?
Secure a copy of the trust or other transfer documents immediately.
This might seem like a matter easily accomplished, but it often is not. When the Hackard Law team is retained by our clients, we work quickly to accomplish this. Demands on the wrongdoer may initially be made in letters, but this can easily escalate to court filings. We also utilize a software program to quickly secure the title history of real property. Surprises are often in store for abused California trust beneficiaries and disinherited children.
If the financial elder abuse is evident, file a civil action in the California Superior Court.
California statutes on estate and probate law provide strong remedies for financial elder abuse. As of January 2014, the California State Legislature has changed the landscape of estate litigation with new California elder financial abuse remedies. A claim of financial elder abuse may now be filed in the civil court, and as such a jury may hear the claim. A jury of our peers is both a prized constitutional right as well as a great opportunity to tell our story. An abused beneficiary or disinherited heir wronged by the conduct of a financial elder abuser may be grateful for the opportunity to tell his or her story to twelve neutral jurors – jurors committed to not making up their mind until they hear all of the evidence from all sides and the case is given to the jury for deliberation.
The State of California’s updated laws on elder financial abuse and undue influence are a major boost for victims as well as wronged beneficiaries. Jurors will be instructed on the law that applies to the case at issue before they began their deliberation. Jurors will also be instructed that in a civil case like financial elder abuse, the financial elder abuse need only be proven by a preponderance of evidence in rendering a verdict against the financial elder abuser. There are some additional complexities in the law, but it is important to note that the initial standard is whether it is more likely than not that the alleged wrongdoer committed financial elder abuse.
There are particular jury instructions in California that detail how undue influence can be determined in a financial elder abuse trial. Whether you have served on a jury or known others that have done jury service a near universal experience is that 12 citizens in the county in which the matter is tried bring a collective experience and common sense in rendering a fair verdict. A financial elder abuse claim only requires that 9 of the 12 jurors agree – not requiring the unanimity of a criminal case.
In addition to civil trial for elder financial abuse, California’s Elder Abuse & Dependent Adult Civil Protection Act (Welfare & Institutions Code 15657.5) provides for the awarding of attorney’s fees. The plaintiff is awarded attorney’s fees if the defendant is proven liable by preponderance of evidence. If the defendant is also found guilty of “recklessness, oppression, fraud, or malice,” the court can also impost compensatory damages.
Ask your attorney about his experience and contingency fee arrangements.
If we need surgery and are referred to a surgeon, it is prudent to ask the surgeon how many surgeries like ours she has done in the last year. We can also ask for the outcome of the surgeries. We may be surprised by the answer. We might hear that it might be a hundred, or it might be two. Most of us would rather go with the surgeon who has the experience and the positive outcomes. Experience and credibility count – both in medicine and in estate law.
Attorneys’ fee arrangements are critical for the attorney and the client. Hourly fees are often the norm in estate litigation. Sometimes a mix of hourly fees and a contingency fee element may be desirous for the client. At other times, the client prefers and expects a contingency fee arrangement.
Contingency fees are often a matter of necessity. The very nature of an aggrieved trust or estate beneficiary or heir is that the person has been cut off from the financial distributions of an estate. This exclusion is often the cause of confidence in the wrongdoer: they think they’ll get away with wrongdoing. Contingency fees might well put an end to the wrongdoer’s confidence.
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Contact Us For Your Trust Litigation Needs In California
Under the leadership of Super Lawyer Michael Hackard, Hackard Law is on the cutting edge of California estate, probate and trust litigation. Our team of attorneys is dedicated to representing clients at every stage of the litigation process – we’re here to safeguard your family and your future. Hackard Law serves clients across the state, from Sacramento and San Francisco to Alameda, San Mateo, Contra Costa, Santa Clara and Los Angeles. We work to ensure that victims of wrongdoing in estate and trust matters are shielded from further abuse and that the wrongdoers themselves are held to full account under the law.
If someone has unlawfully taken an estate from you and your loved ones, don’t give up. There are ways you can fight back and recover what’s rightfully yours. Hackard Law is dedicated to serving clients and protecting their interests throughout Northern California. Call us today at 916-313-3030.