Question

Can I sue for will or trust fraud in California?

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Answer

Yes. In California, there are several types of will and trust fraud. One common type of trust fraud involves a situation where the trustee engages in self-dealing or other dishonest conduct to the detriment of the beneficiaries of the trust. The trustee of a trust owes a fiduciary duty to the beneficiaries of the trust. This means that the trustee must act in the best interest of the beneficiaries. If the trustee does not do so, the beneficiaries can file a lawsuit against the trustee in probate court. In that situation, the beneficiaries can recover monetary damages against the trustee and have the trustee removed by the court and a new trustee inserted in his/her place.

Common examples of trust fraud are: (1) trustee fails to distribute trust assets to beneficiaries in accordance with the terms of the trust; (2) trustee engages in self-dealing with respect to trust assets; (3) trustee fails to make prudent investments with trust assets; (4) trustee refuses to provide to beneficiaries an accounting regarding the trust assets; (5) trustee commingles trust assets with his/her personal assets; (6) trustee uses trust assets to pay for personal expenses; and (7) trustee mismanages trust assets, thereby causing overall value of trust assets to decline in value.

With respect to wills, the executor or administrator of a will owes similar duties to the beneficiaries. If an executor or administrator violates those duties, the beneficiaries can file a lawsuit against the executor or administrator in court. The same type of conduct that constitutes trust fraud also constitutes will fraud when done by the executor or administrator of a will.

Another common type of will or trust fraud involves a wrongdoer who coerces a person (most often an elderly person) to change his or her will or trust to benefit the wrongdoer. In most of those situations, the elderly person has dementia or otherwise lacks mental capacity and is an easy target for the wrongdoer. Often, the wrongdoer coerces the elder to make the changes shortly before the elder's death or while the elder is in the hospital. In other situations, the wrongdoer exerts undue influence (excessive persuasion) on the elder to get him or her to change his or her will or trust to benefit the wrongdoer. Elders with Alzheimer’s disease or another type of dementia are very vulnerable to undue influence. When a wrongdoer engages in this type of trust fraud, the trustee or a beneficiary of the valid trust must promptly file a trust contest to invalidate the fraudulent trust in the proper probate court prior to expiration of the statute of limitations. The statute of limitations can be as short as 120 days. Similarly, with respect to will fraud, the executor or a beneficiary of the valid will must promptly file a will contest with the proper probate court to invalidate the fraudulent will and the statute of limitations can be even shorter. That is why it is very important to contact an experienced elder law litigation attorney immediately if you suspect that a friend, relative or family member has been coerced or unduly influenced to change his or her will or trust and is the victim of will or trust fraud.

Answered 01/08/2014

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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