Challenges to Estate Planning Documents and Elder Abuse Litigation

In last month’s blog entry we discussed the requirements for a valid California will and some of the potential grounds for challenging a will, including allegations of:

• Lack of testamentary capacity


• Fraud


• Undue influence


• Duress


• Improper execution of the will


• Elder abuse

Financial Elder Abuse Litigation

Unfortunately the elderly are particularly vulnerable to fraud, coercion, undue influence and duress, often because of Alzheimer’s or dementia, or due to loneliness or isolation from friends and relatives. Many of our elders are being robbed of their hard earned savings by strangers, personal or financial advisors, caregivers or even family members. Many seniors have been coerced into creating or changing wills or trusts to name the abuser as the beneficiary, or changing beneficiary designations on life insurance or retirement benefit accounts to name the abuser as the beneficiary.

California has seen an exponential increase in the number of lawsuits filed alleging financial elder abuse, partly because of our growing population of seniors, and partly due to increased awareness and enhanced protection of elders due to changes in the law.

California Laws Protecting Elders from Financial Abuse

California law has been expanding protections for the finances of our senior citizens by broadening the definition of financial abuse and making it easier for victims to bring lawsuits and prove their case. California law defines financial elder abuse as the taking, appropriating or retaining the real or personal property of an elder for a wrongful use or with intent to defraud, or both. California law requires banks and other financial institutions to report suspicious conduct which may constitute financial elder abuse since bank personnel and financial brokers are often in the best position to notice the signs of financial elder abuse.

San Diego Probate, Trust & Estate Litigation
San Diego attorney Vincent Casiano has significant experience in financial elder abuse cases as well as probate and trust litigation arising out of financial elder abuse. the Casiano Law Firm for experienced advice and representation.

Rules for Valid Wills Create Traps for the Unwary

California's statute of wills contains several requirements that must be followed in order for a will to be valid. An invalid will could cause the estate to be probated according to the laws of intestate succession, where the wishes of the will-maker (the testator) are completely ignored, and the estate is distributed according to preset statutory rules.

Requirements for a Valid Will

In order to be competent to make a will, a testator must be 18 years old and of sound mind, possessing the necessary testamentary capacity to make a will. This means that the person must understand what it means to make a will, must appreciate the extent of his or her estate, and must know the family members and other persons whose interests will be affected by the making of the will.

The will must be in writing (i.e., typed or printed) and either signed by the testator or by another at the testator's direction. There must be two witnesses together at the same time to also sign the will, attesting that they witnessed the testator's signature or the testator's acknowledgement that the signature on the will belongs to him or her.

Numerous Ways to Challenge a Will

A will can be challenged (contested) in any number of ways. One may allege that any of the procedures outlined above were not followed properly, or that the testator lacked the testamentary capacity to make a will. Even a will that meets all the above requirements is invalid if it can be shown that the testator signed the will under duress or by virtue of fraud or undue influence. When more than one will is produced, difficulties arise as to which will should be accepted and admitted into probate. A will contest can cause drawn-out litigation where legal battles are fought over complicated factual and legal issues.

Always Seek Professional Assistance

As a lawyer who practices both estate planning and probate litigation, Vin Casiano knows that the best defense is a good offense, and the best way to keep a will safe from contests is to make sure that it is prepared correctly in the first place. Always seek the assistance of an experienced estate planning attorney to make sure your will is prepared with the care and skill required to be valid under California law and to withstand any legal challenges. In San Diego and Southern California, contact the Casiano Law Firm for sound legal advice and high-quality professional assistance.

The Importance of Funding Your Trust & Periodically Reviewing Your Estate Plan

You signed your estate planning documents and placed the original documents in a safe place. You're done with your estate plan, right? Not quite…you'll want to ensure that if you've created a trust as part of your estate plan, that your trust has been properly funded with the appropriate assets. You'll also want to periodically review your estate plan to make sure it still comports with your wishes and that it takes into consideration changes that may occur in your personal or financial situation.

Funding Your Trust

Your trust will control the distribution of those assets which are held in the name of the trust. Title to your assets must be properly transferred to your trust in order to avoid probate. If an asset is not transferred into the trust, a probate proceeding may be required. Transferring real estate to a trust involves preparing a deed and accompanying documents transferring title to the trust. Some assets, such as life insurance policies and retirement benefit accounts, are contractual in nature and controlled by beneficiary designations. Careful coordination of beneficiary designations is required to make sure these assets will be distributed as you intended.

Events Triggering the Need to Review Your Estate Plan

There are many changes in your personal or financial circumstances that could have an impact on your estate plan. A few examples include:

• A change in your marital status (marriage, separation, or divorce)
• Death or incapacity of a fiduciary or beneficiary named in your documents
• A change in your health condition
• Retirement or job loss
• Receiving a substantial inheritance

San Diego Estate Planning, Probate and Trust Administration
Thank you for reading our blog. If you have any questions regarding estate planning, or need assistance with the administration of a trust or estate, contact the Casiano Law Firm for experienced advice and representation.

Important But Overlooked Property Tax Exemptions

In last month’s blog entry, we discussed how property taxes are an important, and often overlooked, consideration in estate planning and estate administration in California. Many people don’t realize there’s a problem until they receive a large property tax bill indicating that their property has been reassessed for property tax purposes. In last month’s blog entry we discussed how property taxes work and why you should not transfer any interest in your real property without consulting an attorney first. Here are some of the questions we commonly receive regarding property taxes and the administration of an estate:

Will a property be reassessed upon the death of the owner?

Yes. Under California law, death of the owner is considered a change in ownership and the property can be reassessed as of the date of death for property tax purposes.

What about if the property was held in a trust? Is it still subject to reassessment?

Yes. A change in ownership occurs upon the date of death of the owner of the property, also referred to as the trustor, or lifetime beneficiary of the trust. The change in ownership and, if applicable, the date of reassessment, is the date of death the property owner, not the date of distribution to the successor beneficiary of the trust.

Will the property be reassessed if it passes to the decedent’s children?

Yes. However, if all or some of the property is passing to the decedent’s child(ren), the decedent’s child(ren) may qualify for a reassessment exclusion. In order to qualify, a Claim for Reassessment Exclusion Between Parent and Child must be filed with the Assessor’s Office within three years after the date of transfer, or prior to transfer to a third party, whichever is earlier, or within 6 months after the mailing of the notice of supplemental or escape assessment.

If the above time requirements have expired, and the property has not been transferred to a third party, a claim can still be filed, however, the exclusion will only apply to future tax years.

What about property passing to a grandchild?
Property passing to a grandchild may be exempt from reassessment if all the parents of the grandchild that qualify as a child of the deceased property owner are deceased. A Claim for Reassessment Exclusion Between Grandparent and Grandchild must be filed with the Assessor’s Office in a timely manner in order to qualify for reassessment exclusion.

San Diego Estate Planning, Probate and Trust Administration
If you have any questions regarding property tax reassessment, or need assistance with the administration of a trust or estate, contact the Casiano Law Firm for experienced advice and representation.

Property Tax Considerations in Estate Planning

Property taxes are an important, and often overlooked, consideration in estate planning and estate administration, particularly in the State of California. Many people focus on federal estate tax considerations, with perhaps some concern for gift, generation-skipping transfer and income tax consequences. It isn’t until a client receives a large property tax bill indicating that their property has been reassessed for property tax purposes that it becomes apparent that there is a problem.

How California Property Taxes Work

In California, annual property taxes are calculated as a percentage of a real property's assessed value. Assessors may increase a real property's assessed value by only 2% each year unless there is a “change in ownership”. This has worked in favor of property owners because historically, real property values have increased at a rate greater than 2% per year.

When a “change in ownership” occurs, it triggers a property tax reassessment, and allows the County Assessor to adjust the assessed value of the real property to the current fair market value. The “change in ownership” rules are very complex and confusing. Property owners often inadvertently trigger a reassessment, which can cause significant increases in property taxes each and every year thereafter. This is one reason why you should never attempt to transfer an interest in real estate without first consulting an attorney – such a transfer could lead to a significant increase in property taxes, not to mention other problems.

Beware of Property Tax Issues in Business Succession Planning

If you own a business and have real property titled in the name of your business, you must be even more careful. A transfer of even a small interest in a business, even 1%, can trigger a reassessment of all of the California real property owned by your business. In addition, if you fail to report an event triggering a change in ownership in a timely manner, you face substantial penalties from the State Board of Equalization.

Experienced Estate Planning Attorney in San Diego

Careful consideration should be given when choosing an estate planning attorney, because it is easy to overlook property tax and other issues. Hiring the least expensive attorney to do your estate plan could result in increased property taxes for as long as you own your property.

In next month’s blog entry we will take a close look at property tax issues that arise in probate and trust administration. If you have any questions regarding estate planning, contact the Casiano Law Firm for assistance.