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How to Address Probate Litigation Issues When Courts are Limited

If you’re in a dispute over an estate, you might be wondering how the pandemic will impact your case. Unfortunately, at the present time, most court services are limited or closed. With that in mind, there are some things you need to know before you pursue probate litigation during the pandemic.

Just How Limited are the Courts?

In some parts of the country, trials by jury have been suspended as a result of social distancing. It may be possible to have your case heard by a judge, but you won’t be able to have a jury trial for your probate litigation. Also, investigative services are likely to be impacted by the pandemic, which means you could be limited with regard to the evidence you’re currently able to gather.

In fact, many lawyers and private investigators are postponing all nonessential in-person services until the pandemic has subsided. So, how can you successfully proceed with probate litigation if courts are limited? It’s not ideal, but it’s also not impossible. Here are some questions for you and your lawyer to discuss…

Can Your Hearing be Scheduled for an Earlier Date?

If you hire a skilled Livermore lawyer, you may be able to set a date for your hearing sooner than you expected. In most regions, courts are still scheduling some cases. While it’s true that nonessential hearings were broadly postponed for many people, your lawyer may be able to show the court that your case is essential.

Is Your Probate Litigation Case an Emergency?

If you can demonstrate to the court that your probate litigation case is a matter of emergency, it’s possible you’ll be able to push your hearing forward. You might be able to prove that your case is an emergency if it meets any of the following criteria:

  1. You’re suffering from serious financial problems as a result of the matter that’s being disputed.
  2. It’s a possibility that the matter could result in irreparable harm to yourself or another person.
  3. Or, if you think there’s another reason why you qualify for an emergency hearing, talk with your lawyer about the situation.

Should You Postpone?

Due to social distancing, it may not be possible to have your case heard by a jury right now. If you’re able to schedule an emergency hearing, it’s likely your case will only be settled by the judge. So, it’s a good idea to discuss the best course of action with a lawyer before deciding whether you should wait to proceed after the pandemic.

Probate Litigation Lawyer

If you need guidance, John Lewman is the Livermore attorney who can handle all your estate planning and probate needs, even during these unprecedented times. Contact his office at (925) 447-1250 to schedule a consultation.

Filed under Probate Tips

The Top 5 Reasons for Probate Court

You may be wondering if you’ll need to go through the probate process. It’s one of the most common questions people have when a loved one passes away. Probate laws differ by state, so it’s important to discuss your unique circumstances with a reputable estate planning attorney. However, here are some of the top reasons for probate court to help you determine if it’s necessary in your case.

An Invalid Will

Probate court is necessary whenever a will is deemed invalid, but there are various reasons for why this occurs, such as the following examples…

  • Mental Incompetence: The deceased wasn’t mentally competent when the will was drafted, calling the document into question.
  • Improper Execution: The will was either unclear or not made legal.
  • Undue Influence: There’s speculation that the deceased was under duress when the will was revised or created.

No Will?

If there isn’t a will, the probate court is needed to sort out the deceased’s belongings. It’s a legal process to distribute assets and transfer titles of property. Unfortunately, there’s no other way to accomplish this.

Designated Beneficiaries

It’s common for beneficiaries to be named. For example, on retirement funds, or life insurance policies. However, if none were designated, or they’ve since died, probate is required.

Sole Ownership

When assets are owned solely by the deceased individual, probate court is generally required to transfer property to a beneficiary’s name.

Tenant in Common or Joint Tenancy

Another reason probate may be necessary is if assets were owned as either a tenant in common, or a joint tenancy. What this simply means is that the deceased owned property with someone, like in a common law marriage.

Our Probate Court Services

If any of these common reasons for probate apply to your personal situation, we can help. Or, for more information about probate and how to avoid it, please contact Lewman Law at (925) 447-1250.

Filed under Probate Tips, Uncategorized

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