Last week the California Supreme Court used a conservatorship case to clarify how appellate courts should review the sufficiency of evidence when the trial court applied the clear and convincing evidence standard.
In Conservatorship of O.B. (2020) 9 Cal.5th 989, the Supreme Court held that “when reviewing a finding that a fact has been
Creators of trusts (also known as settlors or trustors) usually think long and hard about how their property should pass when they die. It’s therefore common for trustors, or their lawyers, to incorporate protective safeguards into their trust instruments to shield trustors from their own whim and indecision, and ensure nobody trifles with their wishes
The COVID-19 pandemic has idled workers and the coming weeks will bring more news of business closures and bankruptcies. After a decade of sustained growth, we are facing a recession of uncertain depth and duration. The New York Times recently reported that some Americans are turning (or perhaps returning) to “financial therapy” for support.
In
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 the deceased spouse’s biological children against their step-parent, as discussed in a prior post. Sometimes care custodians who
What a difference a few weeks make! A month ago, the COVID-19 virus was a distant threat. Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return.
Colleagues share that COVID-19 has led to a flurry of calls from clients who want to push forward to complete estate plans that they had left unfinished. Folks who never had estate plans also are seeking to get them done.
California’s estate planning formalities, however, create challenges in our pandemic situation.
Last week the California Supreme Court issued a unanimous opinion in Barefoot v. Jennings (2020) 8 Cal.5th 822, ruling that a trust beneficiary disinherited in an amendment may contest the amendment’s validity in the probate department of the Superior Court under California Probate Code section 17200.
The Court of Appeal had narrowly construed
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 segment of senior care. Half of assisted living residents are age 85 and older, and over 40 percent have some form of dementia.
In “How Not to Grow Old in America,” an article by Geeta Anand in the New York Times last year, the author discusses caring for her parents, notes the above trends, and argues that if assisted living “is to be a long-term solution for seniors who need substantial care, then it needs serious reform, including requirements for higher staffing levels and substantial training.” She cites examples of deaths and injuries that have befallen seniors at assisted living facilities in California and elsewhere.
While Ms. Anand’s focus is on the physical care of seniors in assisted living, the transition from a home environment to an assisted living environment also can lead to serious financial elder abuse.
(Editor’s Note: The Court of Appeal granted rehearing on December 2, 2019 and later depublished the portion of its opinion discussed below such that it is no longer citable authority in California courts.)
It is widely understood in California that inherited assets, unlike assets earned from labor, are the separate property of the receiving spouse. But what if the assets do not come directly from a parent and instead pass from one sibling to another?
Inheritance for separate property purposes generally means direct inheritance, says the California Court of Appeal. That’s the lesson of In re Marriage of Deluca (2019) 41 Cal.App.5th 598.
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 property through undue influence, or who takes property through the commission of financial elder abuse.
While the
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 crafty and crooked caregiver may go so far as to marry his or her client as part of a scheme.
The California Legislature has closed loopholes in the Probate Code that allow abusive caregivers to marry their way into a dependent adult’s wealth. Assembly Bill 328, signed by Governor Newsom on June 26, 2019 and effective on January 1, 2020, creates a presumption of undue influence that applies in two scenarios. The Trusts and Estates Section of the California Lawyers Association sponsored the bill and the California Judges Association supported it.