California is one of many states that have passed laws punishing people for abusing, neglecting, and/or exploiting adults who are vulnerable.  Quite often these people are seniors.  Obviously that is good for people who are attempting to recover for any of these things.  However, as often happens, the purpose of the law — in this case to discourage this type of conduct and punish wrongdoers — can sometimes be lost and the law can be used unfairly.  This is especially true in will and trust contests where family members are frequently alleging exploitation.  The result of this in California probate proceedings can be very expensive.

Recently, Robert Fleming, a Tucson, Arizona attorney wrote about a case in Arizona that was the subject of a Court of Appeal decision in February 2008.  The facts of the case are as follows: family patriarch died, leaving a “warring family”, three different trusts, and a will.  His will and trusts left most of his estate to his daughter; very little to his son; and a small gift to his sister (hereinafter “aunt”).

The son, thought that his sister had taken advantage of their father and he and the aunt  filed a probate proceeding in which they alleged exploitation.  All parties ultimately agreed that a special administrator be appointed to investigate the allegations, and that they would be bound by the special administrator’s decisions.

The special administrator ultimately found that the daughter had behaved properly; she questioned the motivation of the son and aunt for filing the action; and she recommended dismissal of the actions.

The probate judge dismissed the case.  The judge ordered the $27,500 fee of the special administrator to be borne by son and aunt’s share of the trust.  That was appealed and the appellate court sent the case back to the probate judge and instructed the probate judge to determine if son and aunt’s actions were malicious in alleging exploitation.  If so, they would be liable for the administrator’s fees.  If not, the estate would be liable.

The moral of the story is that allegations of exploitation can be proper or they can be unfounded.  Either way, there are going to be attorneys fees and other costs.  Even if son and aunt have to pay the special administrator’s fees, the estate will have to pay attorneys fees and court costs.

In the event that it has been a while since you have reviewed your estate plan, including your will and/or your living trust, it makes sense to review it to make sure it is current with your situation.  If you have not done your estate plan yet, I would enjoy speaking to you about getting it started.  I can be reached at 310-391-1311.