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Newport Beach Estate Litigation Law Blog

When a trustee breaches their duty

As its name implies, a trust depends on trusting someone. A trustee is someone with an enormous amount of power over assets that are supposed to be managed on behalf of the beneficiaries. This is a big responsibility, and it can be a terrible problem if the trustee acts negligently.

A trust is a way of dividing ownership of property. The trustee takes possession of the property and manages it for the benefit of the beneficiaries. People sometimes set up testamentary trusts that go into effect upon their death, but it is also quite common to form a living trust.

Conservatorships can be crucial, but dangerous tools

Ordinarily, California's conservatorship law comes up in the context of an elderly person who needs help with financial matters and other important decisions. Over the past decade or so, the most famous example of a conservatorship has been very different.

Pop singer Britney Spears has been under a conservatorship since 2008, after some heavily publicized incidents of strange behavior and questions about her mental health. A court appointed Spears' father and a lawyer as her conservators to manage her financial affairs. The lawyer recently left his role, leaving Spears' father as her sole conservator.

How do you find out if you were left out of a will?

Many cases of trust and probate litigation arise when people who thought they might inherit something from a friend or relative find out only after that person's death that they were left out of the will. But if they aren't named in the will, how do they find out? The answer is in the California probate court's requirement of notice.

If a will exists, and the estate must go through probate, the person who has possession of the will, known as the custodian, is legally required to take the original will to the probate court clerk's office within 30 days of the person's death. The custodian must also send a copy of the will to the person who is named as the executor, if there is one. If the will does not name an executor, or the named person cannot be found, the custodian must send it to a person who is named as a beneficiary in the will.

How can certain estates and assets avoid probate?

Under California law, probate is the process in which a deceased person's estate is legally transferred to heirs or beneficiaries. If the person left a will, a probate court determines if the will meets all the formal requirements and is valid, and an executor is in charge of settling affairs and distributing the estate. Without a will, the court appoints an administrator to track down heirs, settle affairs and distribute any remaining assets.

Either way, probate can be time-consuming. Probate without a will, especially, can be expensive. The costs come out of the estate, leaving less to go around when it is time to distribute assets to the heirs. However, it's important to know that under California law, not every type of estate, or every type of asset, must go through probate, and there are ways to simplify the process.

What does it mean for someone to lack testamentary capacity?

Lack of testamentary capacity is one possible reason to contest a loved one’s will. Typically, this ground is considered when a recently deceased loved one had senility, dementia, insanity or was under the influence of a substance. However, many people do not fully understand the requirements for someone to lack testamentary capacity.

Testamentary capacity refers to the mental competence required to legally sign a will. To challenge a will on the ground of testamentary capacity, you must generally prove that your loved one was unable to understand the effects of signing the will at the time it was signed.

Two arrested in alleged financial fraud against elderly woman

As people grow older, they become vulnerable in many ways. Even if they show no obvious, outward signs of illness or serious decline, they may be suffering from physical and mental decline. Unfortunately, there are unscrupulous people who seek to take advantage of such vulnerable adults, and their misdeeds may go undiscovered until after the elder person has passed away.

One such case of alleged financial elder abuse came to light recently when it was reported that two California women were arrested in connection with the financial exploitation of an elderly woman. According to the California Department of Insurance, the two women began a fraud scheme against an 89-year-old woman in 2005, in which they sold her more than 23 annuities, collecting more than $1 million in commissions. Meanwhile, one of the women collected another $400,000 in fees for acting as the woman's trustee.

Assistance in Probate and Trust Litigation Matters

Sifting through the details of an estate after a loved one dies can be a difficult and stressful task. While these situations can sometimes be completed without any friction between the parties involved, disputes can easily break out because of the emotional nature of the process. If this happens, it's important to have the right kind of representation on your side.

At Gostanian Law Group, we understand the sensitive nature of these situations. Often times, these disputes are particularly heightened because of the fact that family is involved. It's not easy to handle the discussions with an entire lifetime's worth of emotions running high. That's why we approach each and every case with the compassion it deserves. We also, however, take a level-headed approach with every probate or estate litigation case in order to construct a strategy that isn't overwhelmed by emotion.

Communication could be the key method in avoiding probate

Wouldn't it be great if every process in life was quick and easy? While some things are, it's also very true that some processes can be lengthy and can try a person's patience. For those in the probate process, it can be a rude awakening when the process of transferring a person's property after death isn't as quick or easy as a person initially may have thought. There are ways to avoid aspects of the probate process in hopes of a speedier and less stressful resolution.

One plan of attack is to be open to the idea of communication. Probate rarely involves one person inheriting the entire estate, rather, it's a number of people who may have to make a concise decision about one or more aspects of a deceased loved one's property. Getting people to agree to one solution or outcome can be challenging, especially for families in such a time of loss. However, being open to discussing the possibilities and allowing everyone to speak their piece can ensure that everyone feels acknowledged and heard.

Understand trust elements to determine if negligence has occurred

If you were to ask the average person what elements are necessary to create a trust, many wouldn't know how to answer. The purposes of a trust can be several, but the means in which a trust is created are few. Here's a few things to understand about the elements of a trust. Knowing them can help you to spot if negligence is occurring.

In order to create a trust, the property owner, usually called the 'trustor', transfers legal ownership to a person or institution, called the 'trustee', to manage that property for the benefit of another person, who is known as the beneficiary. The trustee often receives compensation for his or her management role. The creation of a trust thereby creates a fiduciary relationship. This relationship connects and runs between the trustee to the beneficiary.

Cities think about conservatorships for the homeless

A new bill was passed by the California legislature, and it affects California's homeless and mentally ill. Many of these people consist of the elderly population, but they can be of any age. Formerly known as SB1045, the law would permit Los Angeles, San Diego and San Francisco counties to opt into a five-year pilot program expanding the existing conservatorship rules to include people with both mental illness and substance abuse disorders. Some are in favor of the law, while others claim it is a violation of civil rights.

In theory, the conservatorship option for the homeless and mentally ill seems to be a great option. Once up and running, the conservatorship would provide specific individuals, including the homeless and mentally ill, with permanent housing and medical care. Each person would have the right to a public defender and due process, including the power to petition to end or contest the conservatorship or conservator. There are a variety of requirements that would qualify a person to gain access to the conservatorship.

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