Buffington Law Firm's trust and elder law litigation team has decades of experience dealing with cases in which undue influence is alleged. The fact patterns for these cases are depressingly similar in many instances. Typically a younger friend, relative, or adult child or grandchild will pressure an elderly or infirm person to change their estate plan, or convey property, in favor of the younger person. For undue influence to occur it is not necessary that the victim lacks mental capacity. That there is such a requirement is a common misconception.
Buffington Law Firm's elder law and trust litigation attorneys have frequently dealt with situations where two persons (not spouses) are co-owners of bank accounts. This often occurs, for example, when a relative is placed on an elderly person's bank account as co-owner so that such person can help pay bills and so forth. In many situations the person who contributes most or all of the funds to the bank account does not intend to make a gift to the new account "co-owner." Many people do not read the forms that they sign when they place another person on the account and banks are notoriously poor at explaining the legal ramifications of the forms that they give the people to sign.
Financial Elder Abuse is a serious problem in California. Elderly folk sometimes lack mental vigor and sharpness, and this can sometimes cause them to be excessively trusting, particularly of relatives and their own offspring. California law provides that any California resident age 65 or older is an "Elder" for the purposes of the statute. Buffington Law Firm's elder law attorneys have frequently dealt with court cases involving allegations of financial elder abuse. In this brief Blog article we will discuss the basic nature of financial elder abuse in California.
Buffington Law Firm's Trust dispute attorneys have more than two decades of experience in living trust litigation. As many people know, revocable or "living" trusts have become extremely popular in California and have to a significant degree replaced wills as the preferred means of transferring family wealth to the next generation. As most people know, trusts are designed to "avoid probate." Put simply, this means that one or more successor trustees of a trust are responsible for interpreting the trust and implementing its written instructions without supervision by a court. This contrasts with a probate of a will whereby a probate court supervises the implementation of the will.
Revocable or "Living" Trusts have become wildly popular in California as an alternate mechanism to wills for transferring a family's wealth to the next generation. Lawyers who practice estate planning often tout trusts as a simpler and cheaper way to handle an estate. However, trusts are not without problems of their own and trusts are far from a panacea. Trusts are designed so that one or more "successor-trustees" can administer the trust and carry out its provisions without the need for court involvement. In this way the trust "avoids probate" which is the main advantage of a trust as opposed to a will.
Buffington Law Firm's trust dispute attorneys have been asked to solve many problems relating to misbehaving problem successor-trustees of revocable or "living" trusts. One of the most common problems with trusts once the trustors die and a successor-trustee takes over is the way successor-trustees sometimes handle trust money. Since living trusts "avoid probate," they are ordinarily not under the supervision of the Superior Court. While avoiding probate is often touted as a benefit of living trusts, it can also lead to problems with successor-trustees and the way they handle the trust money and assets.
Buffington Law Firm's Trust and Elder Law litigation attorneys are sometimes faced with situations that deal with the issue as to whether a person has the mental capacity to make a contract or, alternatively, whether that person posesses testamentary capacity -- the ability to make a will or trust. To the layperson this may seem straightforward -- it may seem as though a person either has mental capacity or he or she does not. However, under the law, generally, the required mental capacity to make testamentary decisions is lower than the mental capacity required to make contracts.
Buffington Law Firm's California Trust Litigation attorneys have handled numerous cases involving so-called "Dynasty Trusts" as well as alternative forms of estate plans similar to these. A "Dynasty Trust" is an estate plan in which the trust does not simply distribute assets, wind up, and dissolve when the trustors pass away --the way wills usually work. Instead, the trust is set up to live on for an indefinite period after its creators die, retaining most assets of the estate in the trust, and usually paying mainly income only to the beneficiaries. This type of trust is designed to control the beneficiaries even after the trustor passes away. Perhaps the trustors believed that their children are irresponsible with money. Lawyers sometimes call this type of scheme "dead hand control" as the "dead hand of the past" is controlling the trust, its assets and income, and thereby the beneficiaries.
One of the frequent questions asked of Buffington Law Firm's trust and estate litigation attorneys is whether a successor-trustee of a revocable "living" trust can be removed by a court action. As discussed in recent Blog articles, California living trusts are designed to operate without court supervision. The notion is that after the trustors (the person or persons who created the trust, e.g. husband and wife) have passed away, one or more designated successor-trustees will have the power under the trust instrument to carry out the provisions of the written trust instrument. When this process works as the law intends it is often cost-efficient and quick, and avoids the cost of probate.
Buffington Law Firm's trust dispute attorneys have frequently assisted clients in dealing with problems involving the removal of problem successor-trustees or the need to force the dissolution of a trust. One form of trust that is particularly prone to trust disputes are so-called "Dynasty Trusts."