The Achtel Law Firm is highly experienced in representing individuals involved in estate disputes. Our firm is one of the few local firms that handle these types of cases on a regular basis. We understand how trying an estate dispute can be for you and your family. We are here, ready and willing to help you.
An estate dispute typically involves one of the following situations: contesting the terms of a will; contesting the terms of a trust; objecting to or defending the way in which a trustee is managing a trust; objecting to or defending the way in which an executor or personal representative is managing an estate and estate assets; a conservatorship dispute; contesting gifts made to a caregiver or other persons; financial manipulation and financial elder abuse.
Will & Trust Contests
Generally a will or trust contest typically involves a dispute over estate assets. When a potential beneficiary believes that estate documents have been unjustly manipulated that person may bring a challenge. Sometimes a challenge can be as simple as a letter or a phone call to straighten out a misunderstanding. Other times a more forceful approach is necessary and requires commencing litigation. The Achtel Law Firm will provide a free initial consult to help determine your appropriate options. If our services are then retained we will custom tailor our approach, focused around your concerns as applied to the particular circumstances of your case. Alternatively, if we believe you do not have a strong case we will indicate our impression at that time.
Typical Circumstances
Our aging population has led to a dramatic increase in the number of cases involving the manipulation of our elders. Often times this occurs towards the end of an elder’s life when he or she is most susceptible. According to the National Center on Elder Abuse, forty percent of elder abuse is perpetrated against elders that are 80 years or older. The result may be that the elder’s inheritance is left to someone other than that person’s loved ones or desired beneficiaries. If you are a intended beneficiary who has been harmed as a result of this type of abuse, or similar abuse, the law affords you remedies to protect your interests and ensure that the true wishes of the decedent are carried out. Each case is unique and must be handled accordingly. If you find yourself in this position, the Achtel Law Firm will fight hard for you.
Malfeasance by an Executor or Trustee
Due to poor planning, or manipulation of an individual prior to their death, the person selected to act as executor or trustee may not be well suited for the position. The result is typically that the beneficiaries of the estate are left in the dark regarding the administration of the estate. Beneficiaries may have a difficult time getting a copy of the estate documents, accounting of assets, up to date information regarding the administration, the administration may be unnecessarily prolonged, or the executor or trustee may be stealing assets or improperly managing the assets. At the Achtel Law Firm we can help. There is no reason to feel helpless as your inheritance is squandered. The California Probate Code provides significant ammunition to ensure that your interests are protected. The most important factor at the outset is ensuring that you speak with appropriate professional with significant experience in this area of law. The Achtel Law Firm has such experience and will work tirelessly to protect your interests.
Attorney’s Fees
Our services can be retained on an hourly basis, in some circumstances on contingency, or some combination of hourly and contingency. Contingency means that our firm does not get paid until the end of the case, and only if you received proceeds from the estate. During our initial consultation we can discuss the different options and determine which one is right for your case.
Typical Challenges and Causes of Action
We represent both beneficiaries who want to challenge the term of a will or trust and persons defending such documents depending on the circumstances. We also represent beneficiaries, potential beneficiaries, trustees, executors and personal representatives regarding objecting to or defending the actions of a trustee, executor or potential beneficiary. We will not take a case if we believe that any challenge or defense is unethical or improper.
Potential challenges include: undue influence, coercion, duress, forgery, objection to accounting, objection to act by a trustee, objection to an act by personal representative or executor, demand for information and documentation, financial elder abuse and fraud. We will discuss potential challenges or defenses at the outset of your case.
No Contest Clauses
Often times a will or a trust will contain what is known as a no-contest clause. A no-contest clause is a clause that threatens a beneficiary with disinheritance if he or she challenges the terms of a trust or a will. A no-contest clause can also threaten a beneficiary with disinheritance for challenging the acts of an executor or trustee. Sometimes no-contest clauses work very well to protect the testator’s intentions. However, often they act as an obstacle to challenging improper and wrongful acts. A typical example is where an elder is manipulated into changing his or her estate plan for the benefit of the manipulating party. A no-contest clause makes it difficult for a beneficiary to directly challenge the change in elder’s estate plan. As such, certain actions must be considered to protect the challenging beneficiary under such circumstances.
Due to the dangers and problems caused by no-contest clauses the law provides exception and relief depending on the circumstances. If a no-contest clause applies your case, it may first be necessary to bring a safe harbor petition. Safe harbor petitions are governed under California Probate Code Section 21320 and allow a beneficiary to get court approval before filing a lawsuit. If court approval is granted then the challenge may be filed with no risk of disinheritance. The applicability of safe harbor petitions is case dependent and something that will be discussed with you at the initial consult if applicable to your case.
The potential of being disinherited under a no-contest clause is a very real threat that should not be treated lightly. Much care should be taken so that actions by you or other beneficiaries are not susceptible to be interpreted as a contest. Regardless of how you decide to handle your particular matter, you should discuss your matter with an attorney experienced in handling estate litigation before taking any action.
120 Day Deadline, Notice of Trust Administration and Other Deadlines
If you have been served with notice of trust administration, providing 120 days to respond, and you have concerns regarding the terms of the trust you must act immediately. Failure to respond within the time frame could result in forfeiting your opportunity to object or respond. Other deadlines apply in estate litigation cases and must be considered on a case by case basis. To ensure that you do not waive your legal rights it is highly you recommended that you speak to a professional as soon as possible.
Conservatorships and Conservatorship Disputes
Sometimes as our parents or loved ones become elderly they get to a point where they a no longer able to make good financial or health care decisions due to a decrease in mental cognition. Statistically speaking this is true for about one out of every four persons. A conservatorship is a legal process that takes away a person’s right to make financial and/or medical decisions on their own behalf. Due to the fact that conservatorship strips the elder of important legal rights, the court reviews the process with significant oversight. Petitioning for a conservatorship requires filing a detailed petition with the court, sending a copy of the petition to other family members and an investigation process. The purpose of the investigation is to assess the needs of the elder and determine the suitability of the proposed conservator (the person who would assume control). A family member or professional fiduciary may be appointed as a conservator depending on the circumstances.
Typically the conservatorship process is unopposed and in the best interest of the elder. These cases are relatively seamless and are merely a process of following a complex set of rules to establish the conservatorship. At the end of the process the appointed person(s) will make decisions on behalf of the elder regarding either medical or financial decisions or both.
Conservatorship Alternatives
There are several alternatives to a conservatorship. Whether or not a conservatorship is necessary in your particular case will need to be assessed. Please contact the Achtel Law Firm if you would like more information regarding whether you should seek a conservatorship over a parent or loved one.
Challenges to Conservatorship Proceedings
A petition for conservator may be challenged by a family member or the elder. In these cases, your interests will be best served by retaining a competent litigator who has experience in handling these types of cases. The Achtel Law Firm has significant litigation experience in representing individuals in conservatorhship disputes. We will be able to counsel you on what to expect in these proceedings, how to best prepare, potential outcomes and represent your interests as fully as possible under the law.
Warning Signs
If your parent or loved one begins to give money away, is easily manipulated by a third party, becomes close with questionable persons, becomes closed off regarding important issues, refuses necessary medication or medical treatment, or if issues regarding money are simply not adding up, it is time to conduct your own further investigation. Quite often the warning signs are apparent but ignored in hopes that the situation will improve. If you suspect that someone is taking advantage of your elderly loved one or believe that your loved one is not taking appropriate steps to care for him or herself due to a decreased mental capacity, take action! Please call the Achtel Law Firm so that we can provide further information on how to address this issue. Do not delay, it is not worth the risk to your parent or loved one.
Gifts to Caregivers
Gifts to caregivers are given unique status under California Probate Code Section 21350. Unless specific requirements are met, gifts made to caregivers are presumptively invalid. The purpose of this rule of law is because of the vast amount of financial elder abuse that has been caused by caregivers. If you or someone you love has suffered from the undue influence of a caregiver you may be able to get back all that was given to the caregiver, plus damages and reimbursement of attorneys’ fees.