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.
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.
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.
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.
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What to Do if You Suspect a Forged Will
Despite the inherent tragedy of the occasion, reviewing a deceased loved one’s will is usually a routine affair. Family conflict is far from unusual, but in most cases, the division of assets between heirs won’t come as much of a shock. However, if you have reason to suspect an altered or forged will, let’s consider some next steps.
The Possibility of a Forged Will
Firstly, you must be someone who would be wronged if the will was accepted. You’ll need more than a simple disagreement over its terms to contest its legitimacy in court. So, before you consider challenging a will, you need a concrete reason to move forward with legal proceedings.
Maybe you viewed earlier versions of the will that were drastically different. Or, perhaps the final document contradicts conversations you had with your loved one about their estate plan. Another possibility is that an executor simply failed to perform his or her duties correctly, and overlooked assets.
It’s pretty standard for a will to include a “no-contest clause,” stating that it may not be challenged. But in actuality, such clauses can be dismissed when there’s a legitimate claim to contest.
Can You Challenge a Will After Probate was Granted?
While it’s necessary to meet various conditions before you can contest a forged will, it is still possible to challenge the document after probate is granted.
When a will is challenged following a grant of probate, it becomes the beneficiary’s responsibility to prove the document is invalid.
Forged Will Next Steps
If you suspect a will was forged, the next step is to consult with an experienced probate attorney. John F. Lewman, the Founder of Lewman Law, APC, has over twenty years of experience. He’s committed to resolving his clients’ legal issues with compassion and understanding. For more information, please contact us online or at (925) 447-1250.
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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
- 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.
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Non-crisis Planning for Long Term Elder Care
We don’t want to imagine a future time when our health declines, or our
loved ones are unwell, so most of us don’t plan properly for long term elder
care. But having legal documents and financial preparations in order allows for peace of mind.
These are difficult conversations to have, but advanced planning offers more options. Decisions as important as long term elder care shouldn’t be rushed, which is what happens when we operate in crisis mode. A lawyer can empower you with the right knowledge to help your family through this overwhelming process so you aren’t caught off guard.
Have a Plan: Advanced Medi-Cal Planning
People are now living longer than ever. Nearly two-thirds of us will require
some form of long term elder care in our twilight years. Medi-Cal is worth
considering. It’s a government program in California that covers extended
health costs in a skilled facility. But qualifying for Medi-Cal takes time, and
it’s best to understand a program fully before it’s needed.
There are some misconceptions about Medi-Cal’s eligibility requirements
that a lawyer can help you navigate. Part of the issue is that regulations are
complicated and change frequently. But Medi-Cal is a good backup resource
for patients in skilled nursing homes because there’s no cap on the number of days a patient can stay in their care facility. Unfortunately, Medicare
coverage eventually runs out.
Protecting Your Loved Ones
Most of us will face medical legal considerations someday. Having a plan in
place for a loved one’s estate and long term elder care offers stability in
uncertain times. A lawyer can help with Medi-Cal eligibility planning, as
well as reduce or prevent the government from later collecting against your assets to recover the expense of extended care.
There are emotional and financial costs, but taking steps while you and your loved ones are healthy is an investment in your family’s future protection.
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