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Torrance Elder Law Blog

When abuse and estate administration collide

The idea of someone killing another for their money may make for a compelling movie plot. Like most in Los Angeles, however, you might dismiss the notion of this happening in the real world. Yet the enticement of money that could come from an estate may indeed prompt some to hope for a potential benefactor to hurry up and die (or even to help hasten the process). Here at The Law Office of Matthew C. Wu, clients have come to us with this very serious concern hoping there may be some civil recourse in the event a criminal investigation comes up empty. 

If you share this same worry regarding your recently deceased loved one, you will be pleased to know that state law does have provisions in place that effectively disinherit one who is believed to have contributed to his or her benefactor's death. Indeed, Section 259 of the California Probate Code shows that one party to an estate is viewed legally as having predeceased the decedent if any of the following occurs: 

  • He or she is proven to have physically or financially abused or neglected the decedent
  • He or she is proven to have falsely imprisoned the decedent 
  • He or she is proven to have acted in bad faith towards the decedent 

Can you revoke advance directives?

The process for setting up advance directives was detailed earlier on this blog. Yet the very principle of advance directives is based on the assumption that your opinions do not change. When admitting you for treatment, your healthcare providers must assume that the manner of care that you requested in your advance directives still reflects your current wishes. What if they do not? Are you able to revoke them? 

As you are the one who establishes your own advance directives, it is also your right to revoke them. Thus (as is stipulated in Section 4695 of California's Probate Code) you may at any time revoke all or part of your advance directives. You can do this in writing, by stating it either prior to or during the course of your care, or giving any indication that can implies an intent to revoke (such as shaking your head to the question of whether you want to revoke them). You must, however, demonstrate the capacity to comprehend your decision in order for the revocation to be valid. 

How do you set up advance directives?

One of your basic rights is to determine the course of your health care in Los Angeles. Many fear losing such basic rights if they become incapacitated. You can, however, retain the right to dictate how you want to be cared for by medical providers even after you lose the mental capacity to comprehend such a decision by setting up advance directives. These directives are more than just simple wishes; rather, they are the specific instructions to which healthcare personnel are bound to follow when treating you. Thus, the law requires that certain criteria be met before your advance directives are considered valid. 

Section 4673 of the California Probate Code states that when setting up a written advance directive, the following three requirements need to be adhered to: 

  • The document detailing your directives must contain the date of its execution
  • The document must be signed by you or another under your direction
  • The document must be either signed by two witnesses or acknowledged by a notary public

You may wonder where to begin after losing a loved one

It doesn't matter whether you expect the loss of a loved one due to an illness or other chronic condition or if it happens suddenly due to an accident or some undiagnosed medical issues; you still feel the loss when it occurs. In the first days after the death, your mind is preoccupied with grieving, along with organizing and getting through the funeral and burial.

Ordinarily only after that will you turn your attention to dealing with the estate your loved one left behind. Now, you have to figure out what comes next. You may have some vague notion that you will need to open a probate, pay bills and distribute assets, but beyond that, you may not know where or how to begin.

Reasons for removing an executor

When you are party to an estate in Los Angeles, the perception often is that you are at the will of the estate's executor. In reality, however, an executor's role is simply to ensure that your interests in the estate are protected as per the instructions of the testator. From this perspective, the duties that an executor has to you become more clear. Many come to us here at The Law Office of Matthew C. Yu wondering what recourse might be available to them if an executor fails in meeting those duties. 

Per Section 8500 of the California Probate Code, you (or any interested party to an estate) can indeed petition that one be removed from the role of executor. Of course, the court will typically only consider such a request if there is a valid reason to do so. Personality conflicts or your displeasure in the way that an executor performs his or her duties may not be viewed as sufficient cause to to replace him or her. Instead, the law recognizes the following actions as justifying one's removal from such a role: 

  • Wasting, mismanaging or embezzling estate funds
  • Committing fraud against the estate
  • Being found to be unqualified or incapable or performing the role of executor
  • Neglecting to fulfill one's obligations to the estate
  • To protect the interest of the estate's beneficiaries

Do I really need a will?

Many people in California wonder whether they actually need a will. The truth is that most people should have some kind of estate plan in place when they die, even if they have only a few assets. TheBalance.com offers the following information on what happens when you die without a will or trust in place.

What Happens If You Don’t Have an Estate Plan

Tips on Choosing the Right Executor for Your Will

While will creation is an essential aspect of estate planning in California, choosing the right executor is equally important. Your executor will resume responsibility for financial issues after you die, including satisfying outstanding debt and ensuring your assets are distributed appropriately. Because the decision is so important, Kiplinger offers the following tips on finding the best person for the job.

1. Keep Financial Matters in Mind

How to protect yourself against financial fraud

As a senior citizen in California, you’re probably invested in preserving your estate to ensure you can leave assets to your family upon your passing. Unfortunately, many people target seniors with fraudulent financial offers, which can result in the loss of money and property. In order to properly safeguard yourself against fraud, the National Council on Aging offers the following advice.

Know What to Say to Solicitors

California law recognizes two types of conservatorships

Not all adults are capable of caring for themselves and making the decisions that affect their health and finances, among other aspects of their lives. Whether due to age, an illness or an injury, it may become necessary to establish a conservatorship in order to care for such a loved one.

The state of California recognizes that not all situations are created equal and therefore, established two different types of conservatorships for particular circumstances. Of course, most of these arrangements fall into the same category, but the law does make room for those that don't.

The first steps of the probate process

After the passing of a loved one, you and other surviving family members may have many steps you need to take to settle the estate. If you believe the estate needs to go through probate, you may be in for a rocky road as the probate process can take a considerable amount of time to complete, and they are often the subject of disputes.

Of course, before you start worrying about who may cause conflict, you may want to understand the first steps of beginning the probate process. By knowing where to start, you may feel more at ease as the process gets underway.

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