Legal Service

Archive for September, 2009

A will contest challenges the validity of the testator’s (will signer) intent and seeks to set aside the document or some of its terms. This article describes some of the grounds to bring a successful challenge.

In California, a will contest begins after a will is submitted to the probate court. An “executor” or “personal representative” will request that the court confirm the validity of the will, and then grant permission to distribute the decedent’s estate according to the document’s terms.

A person that was disinherited, completely omitted, or left a smaller amount than expected, can challenge the will on a number of grounds:

Undue influence. This is perhaps the most common element that can be shown to contest a will. An elder with substantial signs of dementia (long and short term memory loss) can become quite vulnerable to improper suggestions and manipulation. In essence, undue influence means taking advantage of another person’s weaker state of mind.

Coercion. This is another form of wrongful manipulation, and similar to “menace”. It involves using threats or intimidation to badger one’s desires and wishes into submission. Wrongfully imposing one’s own wants onto another.

Fraud. This intentional act requires the abuser to have misrepresented a material fact to the victim. The victim must have relied upon the fact, taken action against (what would otherwise have been) his or her better judgment, and caused damage to himself or another.

Duress. This is similar to taking advantage of another’s weaker state of mind, but generally applies to a psychological problem brought on by a specific set of circumstances (the recent death of a loved one, pending medical emergency, etc.). It involves the exploitation of the victim’s stressful mindset.

Mistake. Often, the testator simply made a mistake. For example, inadvertently forgetting to mention one of her seven children (with whom a loving relationship had always existed). The elder law attorney who drafted the will may have made a mistake and went unnoticed when reviewed by the client.

These are some of the ways that a will contest can occur.

Do you know What is a Irrevocable Trust? If you don’t, you are not the only person. Many people that do not have an understanding of what the meaning of an irrevocable trust is.

Although you may not know the meaning of the word, you have probably heard of trust before. When it comes to trusts there are two kinds. One of them is revocable and the other is irrevocable.

Now to give you a better understanding, it is important to get the gist of what a trust is. A trust involves a legal arrangement that a person makes for the things they own for when they die. This arrangement comes down to a written document, called either Trust agreement, or a Declaration of trust.

The individual who makes the document and bares the estate is the trustor or grantor that is listed. The other individual, who is given rights to the property for someone else, is listed as the trustee. This person has the obligation to protect the assets that are transferred within the trust.

Irrevocable trusts differ slightly than the general definition of a trust. Irrevocable trusts are when the grantor, or trustor no longer has legal control over the assets. This applies even in the case the person is alive.

There is still a trustee involved, who has the responsibility of managing the assets in the best interest for the beneficiary. The trustee should carry out the wishes of the trustor. Additionally, some tax benefits come along with these kinds of trusts.

Inter vivos trusts and living trusts refer to those who set up the trust while they are alive. Testamentary trusts, refer to those who put the information contained in their wills. A lot more information exists, in relation to irrevocable trusts. The best thing to do, is get all the information you can. This way you will know what you are getting yourself into.

The say that you cannot make regulations on morality and if you do they will end up hurting all the decent people, and so, when looking at the elder care facilities and all the people that work in senior care assisted living facilities or old folks homes it appears there are some problems brewing. How so you ask?

Well, there have been TV shows like 60-minutes which have shown elder abuse in such facilities, and this has really shaken the core of those with parents in such homes. Unfortunately, whereas this is absolutely inexcusable, elder abuse certainly does not occur in all such senior care establishments. But because the public is now concerned and to prevent abuse, increase regulations on the industry have been placed, supposedly to prevent these horrific activities and abuse.

Now background checks are done, which is a wise thing, but also lots of on-going education to teach people ethics and all the new common sense regulations. Of course, if someone is going to abuse someone else, especially a senior citizen, then they are going to do it when no one is looking and it is the people involved who are criminals. So, there isn’t much you can do to stop such criminality.

What is happening now is that we have laws in placed to prosecute people and regulations in place to make all facilities follow rather structured guidelines, but in doing all this all we’ve really done is add a layer of bureaucracy and created more lawsuits over rules, and thus, raised the cost of care, which is already far too high. Please consider all this.