When elder financial abuse has already occurred, legal action typically focuses on recovering wrongfully taken assets and holding the perpetrator accountable.
Importantly, elder financial abuse does not need to be discovered during the elder’s lifetime to be litigated. In many cases, misconduct only comes to light after death — often when the personal representative inventories the estate and discovers missing assets. In those situations, the personal representative may pursue recovery of assets, and in some cases damages, on behalf of the estate.
Who has standing to pursue recovery after death depends on the nature of the asset involved. If the asset belonged to the elder’s probate estate, the personal representative typically brings the claim. If the asset was held in trust, the trustee usually has standing to litigate. If the abuse interfered with assets meant to pass by beneficiary designation, the intended beneficiary may need to pursue recovery directly.
Although post-death litigation is both permissible and common in California, addressing elder financial abuse during the elder’s lifetime is generally preferable whenever possible. Doing so allows the elder to benefit directly from recovered assets — reducing the risk of financial hardship in their remaining years.
To address financial exploitation that has already occurred, court intervention is almost always required, at least initially. Filing a petition or complaint is what triggers the judge to investigate, compel disclosures, freeze assets, or impose remedies. That said, once a case is filed, the parties may pursue resolution outside of court — such as through mediation — if doing so aligns with the elder’s interests and preserves estate resources.
A strong petition should clearly describe the abusive conduct, explain how the elder was harmed, and identify the remedies being sought. In many cases, a well-supported filing alone is enough to prompt meaningful settlement discussions.
Because these cases are fact-intensive and procedurally complex, working with an experienced probate attorney is strongly recommended. Skilled counsel can ensure the case is properly framed, pursue the strongest remedies available, and avoid costly procedural missteps.
It is also important to understand that an elder who lacks capacity generally cannot initiate litigation on their own. In such situations, a legal representative — such as an agent under a power of attorney or a conservator — must act on the elder’s behalf. If the elder can still communicate meaningfully, their testimony may be used, often with court oversight or the assistance of a guardian ad litem to ensure their voice is protected from undue influence.
