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Signs of Duress in Probate Litigation

A person forced to act against their will is a victim of duress. This “undue influence” is psychological or physical coercion carried out against someone too vulnerable to resist. For example, forcing someone to sign a contract by threatening their personal safety. Because this agreement didn’t occur freely, the law considers it invalid. This article reviews signs of duress in probate litigation.

Validity of the Will

As stated above, a contract is void unless signed willingly, which, of course, includes wills. But the problem is that proving there were signs of duress can be difficult, especially when people have reason to be unhappy with the legal document in question.

Methods Used for Control

Like other forms of abuse, duress is ultimately about control, and there are two main types:

Physical Duress: This may include physical attacks or intimidation, resulting in bodily harm.

Duress by Improper Threat: It’s more common for perpetrators to gain control with threats, than actual physical violence. Unfortunately, it’s also more challenging to identify.

Signs of Duress

  • Withholding medication, food, or other vital necessities
  • Taking control of the victim’s finances
  • Unexplained changes to estate plans, perhaps while the victim is hospitalized
  • Physical injuries
  • Malnourishment
  • Anxiety, depression, or confusion
  • Emotional withdrawal

Proving Signs of Duress

When a victim depends on another person for food or shelter, medication, or even access to their own finances, it’s not a stretch to imagine the abusive ways control might be exercised. For example, in the case of elder abuse. Sadly, this is a classic example of vulnerability plus an opportunity for manipulation.

California bars inheritance based on the grounds of undue influence, whether that includes financial exploitation, elder neglect, or mental and/or physical violence. But coercion can be complex to prove in court. If you suspect signs of duress, we can help. For more information, please contact our legal team to schedule an appointment. Office staff can be reached Monday through Friday (9:00 am to 5:00 pm) at (925) 447-1250.

Filed under Probate Tips, Uncategorized

What to Consider When Hiring a Probate Attorney

When someone close to you passes away, it’s not necessary to stay with the original attorney who created their will. You may decide to find a new attorney to finalize the legal process. Here are 3 things to consider when hiring a probate attorney.

Credentials: Do Some Digging

When you need a good attorney, it’s time to do some digging. Obviously, you want to hire an attorney with a solid background in probate cases, but also consider whether they have experience in other areas that may be relevant to your situation, like real property law.

You can search online to get a sense for a lawyer’s education and expertise, including law school and years in practice, as well as other biographical details. You may find articles written by the attorney, in addition to former client reviews. Client reviews are especially useful when hiring a probate attorney. Also, the State Bar Association has a website that can tell you if the attorney you’re considering is reputable.  

Scheduling Availability

A good attorney is certain to be busy, but if it’s a struggle to schedule an appointment, or receive timely responses, it’s best to take your business elsewhere. Another thing to pay attention to is how well the attorney listens, and whether or not they’re responsive to your concerns.

Communication

Choose an attorney who takes the time to explain things clearly. It’s important that you fully understand the legal process in order to make the best decisions. A good attorney will respect your efforts to educate yourself, and clarify things that confuse you. When hiring a probate attorney, jot down a list of questions so you don’t forget anything you wanted to ask.

It’s important that you’re comfortable with the attorney you hire. These points should help you with the screening process. Contact us at Lewman Law to find out if we’re the right fit for you.

Filed under Legal Services, Probate Tips

Four Ways to Avoid Probate

What is Probate?

There are four basic ways to avoid probate in California. Probate is the court-supervised process that occurs after someone passes away, even if they left a will. It ensures the estate is distributed in accordance with their wishes, and all taxes and debts are paid in full. The executor or attorney representing the estate begins this process, and a court then authenticates the will, authorizing the distribution of the estate to proceed.

Why Avoid Probate?

Time and money are the two main reasons to avoid probate. The court deducts its own fees, and like all court proceedings, this process can be expensive and drawn out, especially if the will is contested. There are other reasons to avoid probate; it’s a public process, meaning anyone can search records to access information on the value of an estate, and personal financial affairs.

How to Avoid Probate

The only way to avoid probate in California is to plan for your assets to transfer directly to your heirs. There are four main ways to accomplish this.

  1. Trust Agreement
    Assets placed in a trust are transferred directly to the named beneficiary. It is no longer necessary for a trust to be handled by a third party. The person who creates the trust may also manage it, until the time of their death.
  2. Right of Survivorship
    The right of survivorship doesn’t apply to bank accounts, but when two individuals share the title to a property through “joint tenancy,” full ownership can be transferred to the surviving party.
  3. Designation of Beneficiary
    Life insurance policies and retirement accounts fall under the Nonprobate Transfer Rules in California. Funds in these types of accounts are transferred without passing through probate.
  4. Operation of Law
    California Multi-Party Account Laws determine who owns the remaining money in a bank account after the account holder is deceased. Funds are transferred to a new account for the survivor and avoid probate.

If you have questions regarding the probate process in California, or any other estate planning needs, please contact Lewman Law for further information and assistance.

Filed under Probate Tips

The Impact of Probate on an Estate

 

If you’re wondering what the impact of probate on an estate is, it’s likely you know of an estate in probate now, or have been appointed an estate executor. Let’s define probate and talk about what it does and doesn’t do.

 

How Do We Define Probate?

Probate is the process that transfers legal rights to property from the estate to the beneficiaries. Any assets that don’t legally pass to beneficiaries automatically are subject to a court proceeding to take these assets out of the deceased person’s name and transfer them into the names of his rightful heirs and beneficiaries.

Examples of items that pass without probate are life insurance proceeds, bank accounts with payable-on-death designations, some retirement accounts, and some forms of real estate ownership pass directly to named beneficiaries by operation of law. This is because there’s already a legal framework to handle transfer of these things to named beneficiaries.

Items that require probate proceedings to transfer ownership to a living beneficiary are referred to as probate assets. This can include cars, personal belongs, antiques, art, or other other assets.

It’ important to note that opening probate is not automatic when filing a will with the courts. These are two separate actions, though often done together.

 

Creditors Are Affected by Probate

It’s unlikely that a person dies with zero unpaid bills. Opening probate shortens the amount of time a creditor has to file a claim against the estate. Without probate, creditors have one year to file for payment from the estate. Once there is an official executor or personal representative as part of the probate process, creditors have only four months to file a claim. After that any request for payment can be rejected.

 

Some Cases Don’t Require Probate

Probate is sometimes legally important, but not always. People frequently don’t bother to open probate when there’s nothing of value to transfer or when all items of value are in a trust, or a joint account. These types of accounts can often avoid probate.

Even when probate is not necessary, the filing of the will remains required by law.

Filed under Legal Services, Probate Tips