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Proving and Contesting Heirship in California

Proving and Contesting Heirship in California

While having a will or trust is the ideal way to inherit property from a family member who has recently passed away, unexpected deaths of family members due to accidents or sudden illness may mean the state will be left to distribute the property and assets of the deceased. If your family member has passed away without leaving a will in place, you may find yourself in the unfortunate position of needing to prove your heirship.

Proving Heirship

When a person dies without a will, their heirs may still be entitled to a share of the property and assets left by the deceased. However, before they can inherit any property or assets, they must first convince the probate court of their relationship to the deceased.

To establish heir status in California, you may file an “affidavit of heirship” in the Superior Court of the county where your deceased family member’s property is located. California family code states that the petition must include the heir’s basic information including a description of the property you are claiming, your name, age, and residence, and the names and information of other potential heirs if they are known. In addition to the required information, it may be helpful to include evidence of your relationship to the deceased such as a birth certificate.

You must also file a decree of determination of heirship with the court in the county of the estate is located. If granted, this decree establishes the petitioner’s identity as an heir of the state, as well as their claim to the property or asset as valid. If the decree is granted, you must notify all relevant parties that the petition was filed.

After proceeding through the aforementioned process, the court may issue a decree confirming heirship, which serves as legal proof that you are an heir to the decedent’s estate.

Contesting Heirships

You may find yourself in the position of contesting heirships petitioned by people who feel they have a claim to your family member’s property and assets. California family code states that any party with a possible claim to property has the right to dispute a petition. The court will set a hearing during which any interested party with a claim to the decedent’s property may contest the heir status of a petitioner claiming rights to property and assets.


Contact a Skilled Estate planning Lawyer in California

Daniel Leahy is prepared to treat your unique situation with the sensitivity and attention to detail it deserves. Mr. Leahy is an experienced Northern California attorney who focuses on matters of trusts and estate law. Serving Alameda County and the surrounding area, the Law Offices of Daniel Leahy in Oakland are prepared to handle your legal questions after a loved one has passed. Call (510) 985-4151 or contact us to schedule a free consultation.

Contesting Powers of Attorney in California

Contesting Powers of Attorney in California

Granting power of attorney allows another person to perform legal acts on your behalf, including consenting to medical treatment or selling property. By granting power of attorney, you can gain peace of mind knowing that in the event of incapacitation, your wishes can be attended to by a person you trust. Unfortunately, there are cases when the holder of power of attorney takes advantage of the person who granted power of attorney. In these cases, a third party may wish to contest power of attorney.

What is Power of Attorney?

According to California law, any “natural person having the capacity to contract may execute a power of attorney.” A person who has granted power of attorney to another person is known as the principal. They must be able to communicate the decision and understand the rights and responsibilities affected by the decision, the consequences for the decision maker, and the risks and benefits of the decision. The principal also retains the right to revoke power of attorney if he or she is mentally competent and able to communicate their wishes.

Contesting Power of Attorney

Power of attorney is typically granted by a principal to a member of their family whom they trust. However, there are times when we believe that the person granted power of attorney is no longer acting with our family member’s best interests in mind. For example, a power of attorney may be invalidated if the agent is abusing his or her authority. Examples of such abuse include stealing from the principal’s assets, neglecting the principal’s needs, or endangering the life of the principal. In these cases, it is important to consult an expert who can review the specifics of your case as your word will be pitted against the word of the person acting as a power of attorney.

Another common dispute involves challenging a power of attorney appointment on the grounds the principal was mentally competent when granting power of attorney. For the court to override the principal’s decision, you must have doctors or mental health professionals prove the principal is suffering from dementia, Alzheimer’s disease, or another form of mental incapacity.

Discuss your Situation with an Experienced California Estate Planning Attorney

If you believe the person holding power of attorney for your family member is neglecting their best interests, Daniel Leahy can help. Mr. Leahy is an experienced Northern California attorney with a focus on trusts and estate law. Serving Alameda County and the surrounding area, Call the Law Offices of Daniel Leahy at (510) 985-4151 or contact us online to set up a free consultation.


Fraudulent Transfers of Gifts in California

Fraudulent Transfers of Gifts in California

While we might consider it rude to investigate the amount or circumstances of a gift, it is perfectly reasonable – and even advisable – to seek further information if you think a gift may be fraudulent. Elder abuse may involve coercing aging relatives into giving away money or other assets, and conditions like dementia and Alzheimer’s disease can prohibit a person from being fully aware of the value of what they are giving away. If you received a gift from someone you believe was impaired or unduly influenced, contact an attorney experienced in fraudulent transfers to make sure your own rights are protected.

Impaired Conditions and Gift-Giving


It is unfortunately common for people in impaired mental states to give away valuable property and assets. Luckily, gifts made under these conditions can be reversed regardless of whether the gift-giver is still alive. A gift-giver must have “testamentary capacity” in order for a giftto be considered legally valid.

Testamentary capacity requires that a person be aware and understanding of the nature of their actions, and is specific to different actions. This means that someone who lacks testamentary capacity for writing a will may not lack that capacity with regard to designating power of attorney. The burden of proof rests on the party who aims to show that the gift-giver did not have the capacity to make a gift while of sound mind.

Undue Influence Over Gift-Givers


In addition to impaired conditions, undue influence may affect the legal standing of a gift. You cannot coerce or force someone to give you a gift. The legal definition of a gift requires that it be given voluntarily by the originator of the transfer of money or goods. The court can ask a variety of questions to determine whether a gift was made under undue influence, including whether the gift was given in a manner consistent with any prior plans, the motive behind the gift, and the relationship between the donor and the recipient.


Consult a California Estate Planning Attorney

If you feel you or a loved one has been coerced or tricked into giving a gift, Daniel Leahy can help. An experienced Northern California attorney, Mr. Leahy handles matters of trusts and estate law and serves Alameda County and the surrounding area. At the Law Offices of Daniel Leahy in Oakland, we are prepared to answer your legal questions. Contact us online or call (510) 985-4151 to set up a free consultation.

California Real Estate Partition Action

California Real Estate Partition Action

When a loved one passes, they often leave behind a home or vacation residence to their children or other heirs. While this may not be an issue for only children, it can present financial hardships and conflict when multiple heirs receive real property, like a house, condo, or vacation home. When only one person wants to sell the property and the other wants to maintain ownership, a partition action may be the only recourse for such a situation.

A partition action is when the court orders the sale of the property and division of profits, division of land, or appraises the price of the property so one owner may know how to buy the other out.

Inheriting assets as a group

When you and a sibling inherit a property in California, you each own half of the property or its value unless the will has set out specific provisions for allocating the property’s value. While some siblings may want to keep the property as a rental or for future inhabitation, frequently, one sibling wants to sell and the other prefers to retain. In such a case, one sibling can buy the other out in a lump sum, one sibling can pay the other monthly installments like a mortgage, or, in extreme cases, the siblings can file for partition, which allows a judge to arrange for the sale so you no longer have co-ownership.

To sell or not to sell?

If you and your siblings cannot reach a cordial agreement to keep or sell the house, involving the court may be your only option. California courts will not force the continuation of co-ownership if one of the parties does not want to remain in such an arrangement, and can force the sale of the property as a result. The downside to this is that the sibling who wishes to keep the property may be forced to leave if they cannot arrange to become a tenant of the new owner.

Talk to an experienced California trust and estate attorney

If you have inherited a property and have a dispute with your siblings, Daniel Leahy can help. Mr. Leahy is an experienced Northern California estate planning attorney. Serving Alameda County and the surrounding area, the Law Offices of Daniel Leahy in Oakland offers the answers and guidance you need. Call (510) 985-4151 or contact us online to set up a free consultation.