News & Analysis as of September 19, 2024

Estate Planning › Elder Abuse › Undue Influence Claims

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Estate Planning is a process where individuals prepare or plan for the settlement of their personal affairs in the event of incapacitation or death. Estate plans typically include provisions relating to the... more +

Estate Planning is a process where individuals prepare or plan for the settlement of their personal affairs in the event of incapacitation or death. Estate plans typically include provisions relating to the disposition of assets, guardianship of minor children, and appointment of representatives to make medical and financial decisions. Effective estate planning can decrease tax liability and facilitate the probate process. less -

The Baby-Boomer Generation & The Largest Succession of Wealth in History: The New Frontier in Asset Recovery - Presentation

Winstead PC on 5/8/2023

David F. Johnson participated in a panel presentation entitled “The Baby-Boomer Generation & The Largest Succession of Wealth in History: The New Frontier in Asset Recovery?” for the Offshore Alert Miami Conference on April...more

Undue Influence, Detecting Elder Abuse, and the Duty to Report Financial Exploitation

Winstead PC on 5/27/2022

Author David F. Johnson recently presented his paper on “Undue Influence, Detecting Elder Abuse, and the Duty to Report Financial Exploitation” to the Austin Probate Bar Association in Austin, Texas, on May 20, 2022. This...more

Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?

Downey Brand LLP on 3/1/2022

California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine. This can become a big issue in a will or trust contest when the...more

Will California SB 315 Improve Revocable Transfer on Death Deeds?

Downey Brand LLP on 7/16/2021

The thrifty do-it-yourselfers among us might jump at the opportunity to transfer their family home to their kids while avoiding probate and the expense of creating a trust. Revocable Transfer on Death Deeds, or RTODDs, have...more

Britney Spears and “Marla Grayson” May Propel Tightened Oversight Over California Conservators

Downey Brand LLP on 5/11/2021

When a California probate court establishes a conservatorship, the conservator is charged with managing the conservatee’s person and/or estate in the conservatee’s best interests. The large majority of professional...more

How Should We Celebrate Elder Law Month?

Foster Swift Collins & Smith on 5/4/2021

With 2020 in the rear view mirror and 2021 well underway, the COVID-19 pandemic continues to generate urgency for elder law planning for those most at risk. May is National Elder Law Month which allows the opportunity to...more

New California Statutes Change Spousal Undue Influence Presumptions

Downey Brand LLP on 4/7/2020

California trust and estate disputes often involve allegations that a surviving spouse took advantage of a deceased spouse so as to get more of the latter’s assets. Often the “spousal financial abuse” charges are leveled by...more

New California Legislation for Trust and Estate Attorneys to Watch in 2020

Holland & Knight LLP on 1/16/2020

California Gov. Gavin Newsom recently signed into law a number of bills that will affect Trust and Estate attorneys, and which are effective as of Jan. 1, 2020. In addition, three new laws make changes to civil discovery...more

California Assisted Living Residents Are Vulnerable to Financial Elder Abuse

Downey Brand LLP on 1/7/2020

As our population ages, more of our seniors are moving into assisted living facilities. The number of such facilities has nearly tripled over the past two decades, with construction of memory care units the fastest-growing...more

Elder Abuse Is Not a Trojan Horse – Bad Faith Must Be Shown for Double Damages Under Probate Code Section 859

Downey Brand LLP on 10/1/2019

Probate Code section 859, our subject in a recent post, packs a punch in California trust litigation. It awards double damages against someone who in bad faith wrongfully takes property from an elder, in bad faith takes...more

California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

Downey Brand LLP on 9/17/2019

Many California financial elder abuse cases we see involve caregivers. While the vast majority are honest, a caregiver who spends many hours alone with a vulnerable client has a unique opportunity to exploit the situation. A...more

Probate Code Section 859 Provides a Double Size Hammer

Downey Brand LLP on 4/9/2019

What do you do if someone steals money or property from a trust or estate? California Probate Code section 850 allows you to ask the Superior Court to order the thief to give the money or property back. To discourage such...more

A Neuropsychologist’s Take on Mental Capacity Evaluation

Downey Brand LLP on 1/23/2019

Mental capacity issues are commonplace in California trust and probate litigation. Jonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity,”...more

Courts Should Read Elder Abuse Act Broadly to Stop Wrongdoers

Downey Brand LLP on 6/15/2017

California’s Elder Abuse and Dependent Adult Civil Protection Act is elastic enough to encompass claims arising from sharp insurance sales practices, even when elders do not pay anything directly to the agents. So concluded...more

What is Undue Influence in Will Caveat Cases?

Smith Debnam Narron Drake Saintsing & Myers,... on 2/16/2017

In order to set aside a Will after a person has died, a Caveator (the person attacking the Will) has three courses of action under the law. First, he can assert that the Testator (the person making the Will) was incompetent...more

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