Many probate judges are apathetic and have abandoned their sacred duty to protect vulnerable elders and families seeking fair distribution of assets upon the demise of a loved one.This apathy and sometimes downright collusion with court appointed attorneys and conservators facilitates physical, psychological and financial abuse.
Many judges discourage attorneys from tying up court calendars with time-consuming cases, and some blatantly issue improper and erroneous rulings; flout the law; and abuse their power and discretion by appointing unnecessary guardians and conservators over the estate.
The judges pressure attorneys to settle cases cheaply in order to clear their calendar and harass client attorneys who refuse to sell out their clients. According to a 2007 report by the Judicial Council of the Courts, this form of elder abuse is an ever growing issue within the California Courts, not only in probate court but also in civil and criminal courts.
Elders, the most vulnerable population, stand the most to lose and by 2030 there will be more citizens over the age of 65 then under 18. In 2000, the elderly were 13 percent of the population. In 2030 they will number over 20 percent.
California has the largest elderly population with nearly 4 million, and that number grows 200,000 per year. By 2020 there will be 6.6 million elderly in California, with 1 million over age 85, an increase of 151 percent.
There are too many judges who not only allow but encourage prolong and expensive discovery processes that drain financial resources and “subdue the client.”
Judges do this by continuously postponing hearings, refusing to issue restraining orders to protect the client, and allow attorneys more time to file specious and perjured pleadings without punishment.
There are reports that numerous near-retirement probate judges will cherry-pick big money cases to win favor with attorneys who later hire them as private “rent-a-judges” where they can earn $10,000 a day to resolve disputes.
The issues and problems with probate court are not new. In 1964, the American Bar Association initiated a movement to cut cost and time in probate and developed the Uniform Probate Code, which after numerous drafts was approved in 1969.
The Uniform Probate Code promised substantial reform, its most controversial reform was the provision for the non-supervised administration of estates. The current system of compulsory court administration results in unnecessary litigation, resulting in attorneys’ fees that produced unnecessary expenses for the estate. Unfortunately the bill failed to pass in 1973.
To protect themselves from the courts, elders must establish a durable power of attorney for property. Then upon death or incapacitation, the durable power of attorney allows their designated agent to seamlessly step into the elder’s shoes and manage their financial affairs.
It is important to distribute a copy of the will with the durable power of attorney to all interested parties, making it clear to beneficiaries that if they contest the will they will receive one dollar and nothing more.
The key is to avoid probate at all costs.