HOW TO HELP SPOT A FRAUDULENT WILL
(AND OTHER FORMS OF ESTATE THEFT)
It seems that in recent years every lawyer dabbled in “estate planning”. The upside of this is that many families have economically minimized estate taxes and increased their charitable giving. The vast majority of lawyers who engage in estate planning are highly qualified. Unfortunately, a small percentage of unqualified lawyers engaged in estate planning and will drafting. These lawyers often improperly executed wills, or did not realize they were merely a tool in someone else’s dubious scheme.
This “consumer’s guide” identifies certain behavior that call into question the validity of a decedent’s estate plan. The suspect behavior is sometimes that of the person signing the will; but more often the people close to the decedent. Estate theft is the taking of a decedent’s estate through undue influence, coercion, fraud, and/or manipulation. Typically, it involves a family member who is close to the decedent, but may be a trusted advisor or health care worker. The bad actor (hereafter referred to as “thief”) arranges for the decedent to amend their estate for the thief’s benefit. The decedent does not act freely or does not realize what the thief is doing.
The motive for estate theft is simple: MONEY. One signature on a piece of paper is all it takes to
shift unlimited amounts of wealth from one person to another. The temptation is often too much to resist. Recent news reports of Brooke Astor’s estate demonstrate this all too well. Estate theft happens too often because of a number of factors.
First, the only direct witness is usually dead by the time the theft is discovered. Young and healthy people are rarely targeted for estate theft. Unfortunately, the terminally ill and elderly are typical targets. They are the most vulnerable and the expected payoff is not far off. Stealing from a person who is physically and mentally weak is far easier than a person with all their faculties and health.
Second, estate theft is often undetected. As stated above, the only direct victim is usually dead by the time the theft is discovered. A case for estate theft is often made out entirely by circumstantial evidence. The family of the deceased victim often accepts an inexplicable/illogical estate plan as “Mom’s wishes”. The family does not know what to look for or how to properly investigate potential theft.
Third, estate theft is almost never prosecuted. The legal burden of “beyond a reasonable doubt” for a criminal conviction is nearly impossible to prove in estate theft cases. Prosecutors often have no choice but to rely on the civil justice system to remedy the theft. Without the threat prosecution, thieves have little deterrent. The Brooke Astor case is a very high profile, but rare, example of criminal charges being filed in a case of alleged estate theft.
Fourth, it is very difficult to prove in Court, where the burden of proof is “more likely than not” to prove civil liability for theft, it is very difficult to prove a case. Cases typically depend on a pattern of circumstantial evidence to demonstrate that the decedent’s estate plan does not represent their true wishes.
The following is a list of “red flags” may be used to suggest that you look further when investigating potential estate theft. The absence of these does not mean a theft did not occur; nor does any one of these mean estate theft definitely occurred. The determination of bad acts will depend largely upon the surrounding circumstances.
The Red Flags:
1. The Death Bed Will. Any testamentary instrument (will, codicil, or trust agreement) executed by a person whose death is imminent is immediately suspicious. Why was the will changed? Who benefitted from the new will?
2. The decedent depended upon a major beneficiary for:
D. Medical attention
E. Religious services
F. Social interaction
I. Day to day care
3 A testamentary instrument which excludes a spouse or child for no apparent reason.
4. A testamentary instrument which benefits one person to the exclusion of others for no apparent reason.
5. A testamentary instrument which primarily benefits non-relatives.
6. A testamentary instrument which benefits home health care workers.
7. A testamentary instrument which benefits a trusted adviser (i.e. the decedent’s lawyer, clergy, accountant, doctor, stockbroker, etc.).
8. A will that was not drafted by an attorney.
9. Significant parts of an estate bequeathed to a religious organization. This is especially suspicious if the decedent was not particularly active in the organization or only joined shortly before their death.
10. A will that was not signed and witnessed in the presence of an attorney (when an attorney supervises the execution of testamentary instruments there is a presumption of regularity).
11. A testamentary instrument which does not accurately reflect the decedents estate (the will benefits people who died long before the will was executed, the will bequeaths assets the decedent never owned, etc.)
12. Large pieces of the estate are unaccounted for.
13. Personal property of the decedent is missing.
14. The decedent gave away large “gifts” in the two years prior to their death.
15. The decedent executed multiple wills in the two years prior to their death.
16. A testamentary instrument which was allegedly executed at a time when the decedent suffered from medical or mental ailments.
17. Assets are given away prior to the decedent’s death by power of attorney (especially if the agent named by the P.O.A. is the recipient of the gift!).
These “red flags” are meant to give you an idea of what type of behavior, by both the decedent
and those around the decedent, raises eyebrows. Even if some or even many of these “red flags” are present, they do not in any way constitute EVIDENCE of fraud, but merely cause for further examination.
If you have questions about a potential case of estate theft, or if you need further legal assistance, contact the Law Offices of attorney George Teitelbaum , licensed both in District of Columbia and Maryland. Check out George Teitelbaum's Legal Experience and Background , as well as office locations and other contact information.
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