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  1. #1
    maidao2001 is offline Member
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    elder financial abuse/statute of limitations

    What is the name of your state? CA

    Anyone know what the statute of limitations is to file a civil suit for elder financial abuse when the financially abused person is dead?What is the name of your state?
  2. #2
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by maidao2001 View Post
    What is the name of your state? CA

    Anyone know what the statute of limitations is to file a civil suit for elder financial abuse when the financially abused person is dead?What is the name of your state?
    Yes, but what are the facts behind your question.
  3. #3
    maidao2001 is offline Member
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    re:thank you for responding

    I am looking forward to future civilized interaction

    Parent was financially abused by one child according to the other, with strong evidence. Went to district atty to file charges, but they won't pursue since elder who was abused is dead. They suggest that child file civil suit. Child may need to wait until they get the $$ together to file a suit, so they want to know what the statute of limitations is.

    Thank you for responding.
  4. #4
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by maidao2001 View Post
    I am looking forward to future civilized interaction

    Parent was financially abused by one child according to the other, with strong evidence. Went to district atty to file charges, but they won't pursue since elder who was abused is dead. They suggest that child file civil suit. Child may need to wait until they get the $$ together to file a suit, so they want to know what the statute of limitations is.

    Thank you for responding.
    Has the deceased's estate been probated?
  5. #5
    maidao2001 is offline Member
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    re:thank you for responding

    no.

    Estate is not being probated - it is a trust, administered by child who may be guilty of the abuse.
  6. #6
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by maidao2001 View Post
    no.

    Estate is not being probated - it is a trust, administered by child who may be guilty of the abuse.
    Then the one alleging abuse had better move his ass.

    In survival actions, the estate or survivors must bring the case within six months of the death of the elder or dependent person or within one year of when the cause of action “accrues,” whichever is later.

    However, to be safe, the case should be brought within one year of the first act of abuse, although the statute of limitations may be extended past one year if the plaintiff was mentally incapacitated or failed to discover an injury. Further, if the case involves a pattern of continuing wrong, the statute of limitations may also be tolled for a period of time.
  7. #7
    maidao2001 is offline Member
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    another issue...

    decedent failed to title a personal loan owed by the trustee to the decedent as an asset of the trust - trustee has denied any such loan existed.
    A copy of the signed loan agreement has been obtained from a safe deposit box the trustee did not know about, and other evidence exists supporting the existence of the loan (loan agreement states that the decedent obtained a home equity line of credit in the amount that was borrowed, that exists, loan agreement states that the borrower needed the money to remodel their home, planning dept. proves remodel permit applied for and was completed etc.) If bank records were soepenaed(?) it would show that the borrower paid all interest on the loan, also written in the body of the loan agreement.
    child cannot afford to fight trust proceedings, (they have been told it can cost up to $100,000 by several lawyers) but will be able to afford to fight once they receive their share of the inheritance.
  8. #8
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by maidao2001 View Post
    decedent failed to title a personal loan owed by the trustee to the decedent as an asset of the trust - trustee has denied any such loan existed.
    A copy of the signed loan agreement has been obtained from a safe deposit box the trustee did not know about, and other evidence exists supporting the existence of the loan (loan agreement states that the decedent obtained a home equity line of credit in the amount that was borrowed, that exists, loan agreement states that the borrower needed the money to remodel their home, planning dept. proves remodel permit applied for and was completed etc.) If bank records were soepenaed(?) it would show that the borrower paid all interest on the loan, also written in the body of the loan agreement.
    child cannot afford to fight trust proceedings, (they have been told it can cost up to $100,000 by several lawyers) but will be able to afford to fight once they receive their share of the inheritance.
    you never said when this occurred or when this was discovered. THAT is the problem here.
  9. #9
    BelizeBreeze is offline Senior Member
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    I have been looking at California Probate Code Sections 16000-16015 and it would seem to me, if you were seeking my advice, that your friend's solution would be more appropriate in filing a motion to remove the trustee for fiduciary abuse.

    Please have him/her speak with a probate attorney. This may be a better avenue than to pursue his current line of reasoning and since the trust is continuing, there is no Statute of Limitations in effect presently.
  10. #10
    BlondiePB is offline Senior Member
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    Thumbs up

    Nice work, BB.


    maidao2001, check with other attorneys. You should be able to find one that will take the case with a smaller retainer and/or no retainer due to this being a trust.
  11. #11
    maidao2001 is offline Member
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    Talking Thank you both

    Sounds like a good plan. I have been looking and there are more than enough attorneys choose from - diligence and careful interviewing should produce the right attorney.
    We will seek a probate attorney with strong litigation skills, who has experience with financial elder abuse and is willing to take a smaller retainer. (you're right - if it is a trust and there is something coming, then payment for fees beyond what my friend could pay now could be paid to the attorney out of their share of the settlement and be written in the contract, no?)

    Just curious -

    Re: the statute of limitations - are you saying that if the financial abuse was perpetrated on the decedent's assets that were assets of the trust that as long as the trust exists there is no statute of limitations? (vs. someone financially abused who only has a will)

    I am learning a lot about the differences, benefits and drawbacks between the myriad of ways one can leave an estate when one dies.

    Personally I plan on gifting whatever I have during my lifetime, prepaying funeral, health and care etc. so I basically have nothing left other than personal belongings by the time I die - I'm too selfish and insist on being around while my gifts are enjoyed!
  12. #12
    BlondiePB is offline Senior Member
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    Quote Originally Posted by maidao2001 View Post
    Sounds like a good plan. I have been looking and there are more than enough attorneys choose from - diligence and careful interviewing should produce the right attorney.
    We will seek a probate attorney with strong litigation skills, who has experience with financial elder abuse and is willing to take a smaller retainer. (you're right - if it is a trust and there is something coming, then payment for fees beyond what my friend could pay now could be paid to the attorney out of their share of the settlement and be written in the contract, no?)
    Yes, good luck & best wishes,
    Blondie

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