Dear steph9876-ga;
Thank you for allowing me to answer your interesting question.
It is true that the State of California ?could? THEORETICALLY choose
to pursue criminal charges against your aunt for defrauding your
grandfather or his estate even though the trustees or executor of the
state oppose such a move. The question is, would they? I doubt it.
The prosecutor (or District Attorney, as they are called in
California) could choose to call the family as ?hostile witnesses?, or
persons whose testimony could implicate someone against their will.
HOSTILE WITNESS
http://dictionary.law.com/default2.asp?selected=884&bold=%7C%7C%7C%7C
In some cases, like domestic abuse or other criminal activity occurs
where people are physically harmed or endangered, the state can and
sometimes does prosecute the case whether the victim wants to or not.
This is especially true where children or (living) elderly people are
involved who cannot speak or make decisions for themselves. Money
matters don?t normally result in this type of prosecution especially
if only a nominal amount of money is involved.
The bigger problem here, I think, is that the creditor (who was
technically the one who was actually defrauded) might very well have a
valid criminal complaint. Should a larger investigation involving the
DA?s office be prompted by some type of investigation into the
incident, it is possible I suppose that the creditor could wind up
being the primary complainant in the matter ? and if you?ve ever seen
a corporate attorney get after someone in criminal or civil court you
know it is a very ugly affair indeed.
As a general rule, you need not engage a lawyer in ANY court
proceeding, neither is the engagement of a lawyer detrimental to you
in any court proceeding. As for what your lawyer told you, I tend to
believe that he was probably offering his opinion rather than the
rules of criminal procedure. The truth is that no entity and no
statute, in any of the 50 US states, has the authority to compel or
force ANYONE to file criminal or civil proceeding against ANYONE ELSE
with regard to ANY CRIMINAL OR CIVIL ACTION. The State can do this,
but I can?t imagine why it would prosecute the matter if all parties
have already agreed to a fair solution ? and it is now only a matter
of ?how much?.
We cannot offer you legal advice in this forum, but it would seem to
me that if the matter went to probate then there would be (or could
be) an itemized list of debts and credits in your grandfather?s
records. The executor could order an audit of those records and
privately determine to what extent your aunt was responsible. Perhaps
this could be done with an accountant or even a separate attorney, who
specializes in estate law, if necessary. Then the aunt could be asked
to enter into an agreement with the estate to make restitution in the
form of a binding contract in which she freely agrees to forfeit any
portion equal to what she inappropriately obtained.
I am not a lawyer, but I do work in law enforcement and have seen and
worked many fraud cases. If a person commits a crime against a
deceased person?s estate, and no other parties are harmed, the
administrator of the estate is usually the person who would decide if
the matter should be prosecuted in the estate?s interest. If not, then
for all intents and purposes no offense has been committed. Speaking
from a law enforcement perspective, if the administrator told me that
he or she did not wish to pursue the matter, I would not investigate
it one inch further. Your case is not the first one where a family
member was confronted with the embarrassment of catching a loved one
with his or her hand in the till after a grandparent died. I don?t
know if you?ve noticed or not, but the California Department of
Corrections isn?t overflowing with aunts who turned out to be estate
thieves. Unless an enormous amount of money is involved, most families
probably work this out among themselves or swallow the loss like a bad
dose of salts.
I see no reason why the family (i.e. the ?real? executor/administrator
of the estate) cannot handle this out of criminal court of all parties
involved are in full agreement. Furthermore, I tend to believe the
notion is absurd, that you will somehow be forced to convict your aunt
of a felony or send you?re her to the penitentiary against your will
if you quietly hire a lawyer to help sort out the financial inequities
so you can settle the matter among yourselves privately out of court
and keep your family?s dignity intact. My guess, just like seeing a
doctor, is that sometimes a second opinion is in order. I recommend
you get one before you take this guy at his word. I?m not saying he?s
trying to steer you wrong, but then again I?m not saying he?s a very
good driver either ? know what I mean?
I hope you find that my research exceeds your expectations. If you
have any questions about my research please post a clarification
request prior to rating the answer. Otherwise I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher |
