Essential Information About Undue Influence in Estate Planning

Undue influence occurs when a testator is unable to exercise independent action and the person exercising the influence makes that person do something against his or her free will. Kind actions and charm are not enough to classify as undue influence. In determining whether undue influence has occurred, courts look towards the vulnerability of the victim, the influencer’s apparent authority, actions used to influence, and the equity of the result. This article will list some essential information about the role that undue influence plays in estate planning in California.

  • Circumstantial Evidence: Parties can use the existence of circumstantial evidence to demonstrate that undue influence exists in a trust or will contest. A case need not be established through “direct” evidence, but instead “circumstantial” evidence can be used to demonstrate that an event occurred. The California legal system has used circumstantial evidence in numerous cases to demonstrate that undue influence has occurred. While still difficult to establish, undue influence cases are easier to prove than some parties might believe. Consequently, parties who believe that undue influence has occurred should not hesitate to contact skilled and experience estate planning attorneys.
  • Codified: The state of California has codified the definition of undue influence, which means that for the purposes of the law, it is easier to determine exactly when the act of undue influence has occurred. This codified definition does not drastically change the concept of undue influence but instead serves to codify previously established concepts. The four-part test for undue influence under California law helps determine more easily whether undue influence existed.
  • Equity is Not Enough: Based on the factors used to determine undue influence, an unfair result by itself is not enough. As a result, individuals can choose to act unfairly in regards to beneficiaries of an estate and this act alone is not enough to establish that undue influence has occurred. As a result, a party that lost money or other things of value does not alone mean that undue influence occurred.
  • Parties Can Shift the Burden of Proof: The party accused of acting under undue influence can shift the burden of proof to establish that the accused party did not act under undue influence. This burden shifting element means that parties accused of undue influence have a defensive tool that can be used to argue undue influence did not occur in a case.
  • A Weak Mental State is Required: To establish the existence of undue influence, a party must demonstrate that an individual was susceptible to being unduly influenced. This susceptibility is an essential element of any undue influence case that must be demonstrated in order for a party to collect damages.
  • Undue Influence Requires a Compelling Reason. To demonstrate that undue influence existed, a party must demonstrate a compelling reason to overturn a Trust or Will. A judge in deciding a case will require a unique and compelling reason to overturn an estate planning decision due to undue influence.

If you believe that undue influence occurred during estate planning, you likely need the experience of a knowledgeable and informed lawyer to explain all of the options available to you so contact our firm today.

Essential Advice for Selecting an Executor

Individuals traditionally select family members to serve as the executors of their estates. Sometimes, however, family situations become complicated after the death of a loved, like the current situation involving the estate of Muhammad Ali. Individuals hope to be able to count on their family members during a difficult time. Selecting an individual, however, to serve as the executor of one’s estate is a large responsibility. This article will provide some tips in selecting an executor for one’s estate.

  • An Executor Should Be Trustworthy. It is imperative that an executor be trustworthy because he or she will be exposed to a variety of financial secrets. He or she will be responsible for reviewing the assets of the estate, determining the deceased individual’s liabilities, and paying off the deceased individual’s debts.
  • Anticipate Potential Conflicts. Consider whether naming an individual as executor will create any potential conflicts among loved ones.
  • Economical Decisions are Necessary. Individuals must make sure that estates do not lose value prior to successful distribution.
  • Choose Someone Capable of Handling the Responsibility. An executor must have a great capacity for organization, be attentive to detail, meet deadlines, and perform other tasks. An individual should be selected who will be able to best fulfill these responsibilities.
  • Do Not Decide Executors Based on Emotional Connections. Do not let your emotional connection to an individual determine who you choose to act as executor. Not every beloved family member possesses the skills requisite to become an executor.
  • Ensure That Your Executor is Diplomatic. In deciding who to serve as executor, select an individual who would be diplomatic in nature while acting as executor.
  • Executors Must Be Organized. The individual who is named executor will be tasked with a variety of detailed assignments including making lists of assets and ensuring that timely distributions for estate taxes are made.
  • Executors Should Be Sensitive. Executors should be sensitive and compassionate enough to ensure that a deceased individual’s last requests are successfully carried out.
  • Make Sure an Individual Knows You Have Named Him or Her as Executor. If you do decide to name an individual as executor of an estate, make sure this individual is informed of your decision. Make sure that alternatives are lined up as well.
  • Make Sure an Individual Named as Executor Has all the Information. If you do decide to appoint either a family member or another loved one as executor, make sure the individual is given the contact information for a reputable estate planning attorney who can assist in ensuring that the executor’s duties are properly carried out
  • Realize There are Other Options. Individuals should know that if they cannot find someone to satisfy all of these qualities, other choices exist including naming a bank or financial institution as executor. Individuals can also ask an estate planning attorney to partner with the individual who is named as an executor.
  • Sometimes a Professional is the Best Choice. You might be unable to select a third party to serve as executor and instead select an attorney or other professional to act as executor of your estate. In this case, make sure you know what fees must be paid into your estate.

Appointing an executor can prove to be a difficult task. If you are faced with naming an executor or have any questions for an estate planning lawyer, contact a seasoned and experienced California estate planning lawyer today.

Estate Planning for the Never Married

Married couples and parents usually have an easy time determining who will inherit their assets. An increasing number of Americans are faced with the situation of passing away without either spouses or children in place. In an article published last year, the New York Times reported that it is wiser for unmarried individuals to make the difficult choice of deciding to whom their estates will go rather than allowing them to go to distant relatives that they barely know. According to the Pew Research Center, statistics reveal that 20% of adults age 25 and older in 2012 had never married, which is an increase from 9% in 1960. Meanwhile, the number of women age 40 to 44 who have no children has increased from 10 % in 1976 to 15% in 2014. This article will discuss some essential advice for unmarried individuals during estate planning:

  • Explain Your Decisions: To prevent adverse legal actions and to ensure that your exact plans are carried out, it is wise and helpful to provide an explanation of your decisions. This type of overly thorough explanation is particularly helpful in cases where there is an unequal distribution of assets to persons with reasonably similar relationships to the testator of a will.
  • Need: Need is a potential good factor to decide how much to give a beneficiary.
  • Regularly Review Your Estate Plan: Individuals who are not married and do not have children should review estate plans at regular intervals to identify areas in which changes to the estate plan are desired. They might include third parties that they were close to at one time but lose touch with over time. In other situations, the financial circumstances of a beneficiary might change, which could signify a need to rewrite an estate plan so that individuals who are in greater need are awarded greater amounts.
  • Understand the Decisions Often Made By Others in Similar Situations: In similar situations, individuals who pass away at younger ages tend to select longtime companions, nieces and nephews, siblings, parents, and friends as beneficiaries. Older individuals who pass away in similar situations tend to select charities.
  • Use Clear and Concise Terms: Individuals without spouses or children must be definitive and clear about who should receive what parts of their estates. When there is not a clearly specified order, the state usually makes strict decisions regarding genealogical rules of inheritance. These types of decisions also tend to take an extended amount of time.

If you are unmarried, crafting an estate plan can be a difficult exercise, so do not hesitate to contact a knowledgeable and seasoned California estate planning lawyer today.

Your Rights Following a Bicycle Accident in San Diego County

Biking is one of California’s most popular sports and pastimes, due in large part to the state’s beautiful weather, scenic roadways, abundant state parks and bike trails, and active population. Experienced cyclists know how to take precautions to protect themselves on the trail or road, but many cyclists are still involved in accidents due to no fault of their own.

If you have been injured in a biking accident in southern California, your experienced Carlsbad or Palm Desert personal injury attorney can help you determine whether another party should be held liable for the damages you have suffered.

Bike Path and Lane Safety in San Diego County

According to a San Diego county grand jury report on bicycle safety, the bike paths and lanes in the area are substandard, poorly located, badly marked, and poorly maintained. While San Diego County has made strides in becoming more bike-friendly in recent years, there is still room for improvement in many areas affecting bike safety.

The study also found that nearly 14% of all traffic accidents in San Diego County involved a collision with a bicycle that resulted in an incapacitating injury to the cyclist, and the higher the speed limit, the higher the rate of bicycle accidents. Since the year 2000, 49 bicyclists have been hit by vehicles while traveling on Montezuma Road.

Traffic Law Education and Enforcement

Laws are in place to protect bicyclists, but when traffic laws are not enforced, motor vehicle drivers do not learn how to best share the roadways with bicyclists. In California, bicyclists have a right to share the roadway with vehicles and do not necessarily need to be riding in a bike lane.

Pure Comparative Negligence Rule in California

California operates under the rule that victims who are injured due to another party’s negligence may recover damages, even if their own negligent conduct contributed to causing the accident. In other words, even victims who are partially at fault can still be eligible for compensation. While some states cap the fault percentage at 50%, California allows recovery even where a plaintiff might be 99% responsible for the accident.

This is important to understand with respect to bicycle accidents, since many bicyclists are found to be partially at-fault. For instance, a bicyclist might not obey all the traffic laws or might not ride in the designated bicycle lane because it is poorly marked.

Even if you believe you may largely be at fault for your bicycling injuries, your bicycle accident attorney with Leslie Legal Group will likely still be able to pursue compensation on your behalf. Though there are some limits to whether a government entity, as opposed to a private insurer or individual motorist, may be held responsible, your personal injury lawyer can investigate the circumstances and determine how to proceed.

Consult an Experienced Personal Injury Attorney in San Diego County

Personal injury attorney Sean Leslie is an experienced bicyclist who understands what you may be going through following an accident. He can help you seek the compensation you may need to pay medical bills and obtain necessary rehabilitation, services so that you can return to road if you desire.

Bringing a Personal Injury Suit Against a Driver on Prescription Drugs

Have you or a loved one been injured as the result of the negligent or reckless conduct of a person driving while experiencing side effects related to a medical prescription? Did you know that the law holds these drivers accountable just the same as drivers who caused personal injuries or property damage as a result of other types of careless, reckless, or intentionally wrongful driving? Neither the legality of a prescription nor ignorance of its side effects are valid bases for avoiding liability for the damages caused by a breach of the duty of safe driving. So, if you have been injured by driver under the influence of even a legal prescription medication, it is within your right to seek compensation from them for your injuries, medical bills, lost income due to missed work, pain and suffering, and other losses. To hold the at-fault driver responsible for these damages, contact a skilled and experienced California criminal defense attorney.

Driving Under the Influence of Prescription Drugs is Dangerous

Properly prescribed and responsibly consumed, most medications pose little danger to driving safety. However, some medications come with serious side effects including drowsiness, audio-visual distortions, irritability, and even seizures. These side effects, which can result from either the presence or absence (e.g. withdrawal) of a prescription medication, pose serious – even lethal – risks when coupled with driving. Just imagine if a driver, traveling at 65mph on the highway, unexpectedly falls asleep or experiences convulsions or a seizure. Terrifying, isn’t it?  

Of course you may know firsthand of the terrible consequences if you or a loved one have been seriously injured by a driver who lost control of a vehicle while experiencing medication-related side effects. While you may not harbor the same bad feelings for this type of driver as you would a drunk driver, you may still hold him or her responsible for the tragic toll taken on your person and property. Ignorance of the existence of side effects or the possibility of their occurrence while driving is no excuse. It is the responsibility of a driver to know the effects of the prescription medications they are on, just as it is the responsibility of the driver’s prescribing physician and pharmacist to inform the driver, in writing, of any possible side effects.  

When lack of awareness or forgetfulness leads to an accident, legal liability may still be rightly imposed.  This is the basis for you seeking compensation for your personal injuries, medical expenses, pain and suffering, lost income due to missed work, and other losses – even from a driver who was unaware of the potential side effects that played a role in the accident that caused your injuries. To seek the compensation you need and deserve for your losses, contact a dedicated and skilled San Diego personal injury attorney. Time is of the essence in filing a personal injury lawsuit, so do not delay in contacting an experienced attorney.

Recovering Compensation for Personal Injuries From a Drunk Driver

Have you or a loved one been injured as a result of another person’s decision to get behind the wheel after drinking too much alcohol? May, for all its beauty, is also a time of danger. With millions of young people celebrating graduation, whether from secondary school, college, or beyond, alcohol will inevitably be consumed. All too often, when alcohol is consumed in the context of celebration, it is consumed to the point of excess. Excessive alcohol consumption leads to drunkenness, and when this state of impaired mental faculties is combined with the poor and dangerous decision to get behind the wheel of a car, truck, or other vehicle, tragedy can ensue. This grave possibility lingers around every graduation celebration in which alcohol is involved – and especially those in more remote areas in which there is no access to public transportation, taxis, Uber, or Lyft.

If this dark possibility has become a reality and resulted in an accident in which you or a loved one were injured by a drunk driver, contact a skilled and experienced California personal injury attorney. An experienced attorney will hold the at-fault driver responsible for his or her dangerously selfish decision-making, and seek the full compensation you are entitled to for your injuries, medical and auto repair bills, pain and suffering, and other losses.

Damages Awarded in a Personal Injury Suit Against a Drunk Driver

When a person chooses to get behind the wheel of an automobile while under the influence of alcohol, he or she has acted negligently. Negligence is a legal doctrine. Specifically, negligence is a breach of a duty of care owed to another person that results in damages. Driving under the influence (DUI) is a breach of the duty of safe driving. Alcohol impairs the mental faculties, slows reaction times, and can lead to speeding, swerving, and even passing out at the wheel.  This brings us to damages, the final aspect of establishing negligence. It is the element of causation – of linking the breach of the duty of safe driving – to the personal injuries you have suffered that completes the tort of negligence. This linking is what justifies imposing legal and financial liability on the at-fault driver.  It is about justice – about holding the at-fault party responsible for the harm suffered by the innocent party.  

While court imposed liability cannot, unfortunately, “unbreak” your bones, it can provide financial restitution. Specifically, in a personal injury lawsuit against a drunk driver, you may seek compensation for your injuries, medical bills, car repair bills, lost income due to missed work, pain and suffering, and other losses. Finally, if you were not injured, but instead tragically lost a loved in an accident caused by a drunk driver, you may be able to bring a wrongful death lawsuit against the at-fault driver. To discuss the specifics of your situation, contact a skilled and experienced California personal injury attorney. A dedicated attorney will fight to obtain the full compensation to which you are entitled.  

Drug and Sex Crimes Among the Most Common in California

Along with theft, driving-related crimes, and assault and battery, drug crimes, fraud, domestic violence, and sex crimes are among the most common in the state of California. If you have been charged with any of these crimes, it is imperative that you mount the strongest possible legal defense. The reason for this is because conviction could result in jail time, fines, court fees, serious damage to your reputation, loss or restriction of the right to drive, loss or suspension of professional licenses, community service, and more. As such, you need a skilled and experienced California criminal defense attorney to fight to protect your legal rights. The purpose of this article is to explain the basics of criminal charges for drug crimes, fraud, domestic violence, and sex crimes in the state of California.  If you have been charged with a crime in California, contact a skilled and experienced San Diego criminal defense attorney.

Drug Crimes Include Possession, Sales, Transportation, Manufacturing, and Being Under the Influence

Drugs crimes are among the most common in California. The most common drugs at issue are marijuana, cocaine, heroin, methamphetamine, ecstasy, PCP, and more. Of course, there are many permutations of some of these drugs, and many different “street” names for each. In the legal system, however, drug charges are prosecuted in accordance with the precise classification of the substance as scheduled under state or federal law. At the lower misdemeanor level is mere possession of a small amount of illegal drugs. This type of possession, commonly recreational in nature, can result in serious penalties, but is not as aggressively prosecuted as drug crimes associated with the economic aspects of the drug trade.  When possession is accompanied with intent to sell or transport illegal drugs, the charges and penalties levied upon conviction are elevated. The same is true for manufacturing. Finally, the more sizeable the amount of drugs – kilograms instead of grams, for example – is highly relevant to the seriousness of the charges prosecuted by the state.

Sex Crimes Include Rape, Sexual Battery, Indecent Exposure, Prostitution, Solicitation, and Lewd Conduct

Sex crimes, along with drug crimes, are at once common, serious, and aggressively prosecuted by the state of California. Rape is defined as nonconsensual sexual intercourse by means of threat, force, or fraud. Statutory rape occurs when any person engages in sexual intercourse with a person under the age of 18. Sexual battery is the touching of the intimate part of another person for the purpose of gratification, arousal, or abuse. Indecent exposure is the willful exposure of one’s genitals to another person, motivated by either a desire to sexually gratify yourself or to offend the other person. Prostitution is engaging in a sexual act in exchange for money or other consideration. If you have been charged with any of these sex crimes, or any of the above detailed drug crimes, contact a skilled and experienced San Diego criminal defense attorney to mount the strongest possible legal defense.

Domestic Violence is a Common Criminal Charge in California

Domestic violence is at once tragic and common in the state of California. Along with assault and battery, theft, driving, drug, and sex crimes, it is one of the most frequently occurring crimes in the state. If you have been charged with an offense that fits within the category of domestic violence, you face a number of very serious consequences if convicted. Whatever the specifics of the charges against you, it is in your interest to be represented by an experienced California criminal defense attorney. The purpose of this article is to explain the different criminal charges for types of domestic violence in California.  If you have been charged with any of them, contact an experienced San Diego criminal defense attorney as soon as possible.

Domestic Battery is a Type of Domestic Violence in California

Domestic Battery is any willful and unlawful touching that is harmful or offensive, and committed against a spouse or former spouse, cohabitant or former cohabitant, fiancé or former fiancé, co-parent, or prior boyfriend or girlfriend. It is the relationship of the alleged victim to the defendant that distinguishes domestic battery from ordinary battery. The types of unlawful touchings that constitute a harmful or offensive contact are many and include punching, pushing, shoving, clothing ripping, hair pulling, scratching, clawing, and more. Penalties for conviction of misdemeanor domestic battery in California include up to one year in jail, a fine of $2,000, and probation.

Child Abuse is a Type of Domestic Violence in California

Child abuse is the act of physically injuring or imposing cruel physical punishment on a child.  Other types of abuse, including sexual abuse, emotional abuse, and neglect, are prohibited as well, but under specific statutes. Using a belt to discipline a child and slapping a child with enough force so as to leave a mark are two examples of child abuse in California. Depending on the specifics of the abuse in question, child abuse is punishable by one to six years in jail and a fine of up to $6,000.

Elder Abuse is a Type of Domestic Violence in California

Elder abuse, including physical abuse, emotional abuse, neglect and endangerment, and financial abuse, is a type of abuse directed at persons of at least 65 years of age. Elder abuse occurs both in the home and in nursing homes and retirement communities. Depending on the severity of the charges, conviction for elder abuse brings penalties of two to four years in jail, $10,000 in fines, formal probation, and, in the event of financial abuse, restitution.

What to Do if You Have Been Charged With Domestic Violence in California

If you have been charged with any form of domestic abuse in the state of California, including domestic battery, child abuse, or elder abuse, contact an experienced California criminal defense attorney. With jail time, fines, reputational damage, and more at stake, it is imperative that you mount the strongest possible legal defense. An experienced San Diego criminal defense attorney will fight to protect your rights.

Defending Against Underage DUI in California

Many young people come down with what is known as “spring fever” this time of year.  This disease is not a health condition, as the name might imply. Spring fever, rather, is an excess of energy, difficulty concentrating, and a proclivity for mischief. The sun is shining, the weather warming, flowers blooming, and life is magnificent in all its rich possibilities. This at times overwhelming confluence of good vibes is felt with special intensity by students looking forward to college while in their last semester of high school.

We have all heard of the sometimes outrageous senior pranks by outgoing high school grads.  These acts of mischief are almost always in good fun and seldom cause problems. Problems do arise, however, when spring fever involves a minor consuming alcohol and then getting behind the wheel of an automobile.  The state of California has no tolerance for this behavior and punishes it harshly. If you or your child has been charged with underage drinking in driving, it is imperative that you contact a skilled and experienced California DUI defense attorney.

Conviction for underage drinking and driving in California can have serious ramifications. Beyond the typical fines, probation, mandatory DUI education, and potential jail time, there is the damage done to a minor’s reputation. This reputational damage goes beyond the abstract and can have real consequences on a minor’s educational and vocational aspirations. To protect your reputation, legal rights, and future, contact an experienced California DUI defense attorney to begin mounting the strongest possible legal defense.

Drivers Under the Age of 21 Are Not Allowed to Have Any Alcohol in Their System

Blood Alcohol Content (BAC) is the scientific measurement used in testing for driving while under the influence of alcohol. BAC is the ratio of alcohol per milliliter of blood in the body. For adults, the .08% BAC is the threshold for unlawful drinking and driving. In other words, a BAC reading of .08% is grounds for a DUI arrest. For minors, the BAC threshold is much more stringent. Even a .01% BAC test result is grounds for a DUI arrest. The reason for this strict law is, as you have probably already guessed, is that minors are barred from purchasing and consuming alcohol.

The legal drinking age is 21.  As such, the law regards it as a flagrant violation for a minor to both unlawfully consume alcohol and get behind the wheel. To punish this serious disregard for the law, underage drinking – even for a low BAC reading that does not correspond with impairment – is punishable by a one-year driver’s license suspension, a fine of $100 or more, compulsory attendance in DUI school, three to five years of probation and possible jail time. Punishments are even more severe if the underage drinking and driving resulted in accident, especially one in which personal injuries resulted.  If you or your child has been charged with underage DUI, contact an experienced California DUI defense attorney immediately.

Defending Against DUI Charges in California

This past weekend, many celebrated the Easter holiday. As with many holidays, Easter brings time with family. Unfortunately, this family time is not always all fun Easter egg hunts, honey-baked hams, and polite conversation. Time with family members, for all too many people, is a time of great stress. When stress runs high and wine or other alcoholic beverages are being served with family meals, there runs the risk of over-indulging. With this unexpected over-indulgence in alcohol at a family event comes a second problem – the unanticipated need for transportation home. This can be difficult in suburban or rural areas, so individuals sometimes feel caught between a choice to spend more stressful time with family members or the poor, and more importantly unlawful, decision to drive under the influence of alcohol. When this unpleasant picture results in a DUI arrest in the state of California, you need an experienced California DUI defense attorney to protect your legal rights and mount the strongest possible defense.

It is Possible to Defend Against DUI Charges in California

Not every DUI arrest is proper, and not every DUI charge is merited. You have many important legal rights, including the right against unlawful searches and seizures. In respect of these rights, California requires its police officers to strictly abide by certain rules and regulations in making a DUI stop and arrest. First and foremost among these requirements is the existence of probable cause. Probable cause is a legal concept that amounts to a “reasonable suspicion.” To even pull you over in the first place, a police officer must possess a reasonable suspicion that you are driving under the influence of alcohol. Examples in the DUI context include the visible presence of alcohol in the vehicle, erratic driving, swerving, and speeding.  

After making a valid stop with probable cause, a police officer must conduct a valid DUI test that generates a result consistent with driving under the influence of alcohol. Most commonly, this test is administered by breathalyzer – a device that measures Blood Alcohol Content (BAC).  Law enforcement would have you believe that BAC tests are a black and white matter, but the truth is that countless interfering substances, legitimate health conditions, and breathalyzer malfunctions can produce inaccurate readings. A skilled and experienced attorney will thoroughly explore every one of these reasons for a possibly false BAC reading.

The same is true with regard to DUI blood tests – the second most common means of testing for DUI. Issues occur with blood samples, as well, as re-testing frequently confirms. From the initial stop to the DUI testing to the arrest, a skilled and experienced California DUI defense attorney will go over every detail with a fine-toothed comb, holding the state responsible for meeting the strict probable cause and testing requirements for DUI. This combination of work ethic and experience could make every difference in your defense. To mount the strongest possible defense, contact an experienced attorney today.