San Diego Estate Planning Lawyer Blog
Not every California estate has to go through a formal probate administration. If you do careful estate planning and transfer all of your personal assets into a living trust, for example, you can ideally leave no probate estate at all. But even if you do not have a trust, if you leave a California estate worth $150,000 or less, your heirs can use a simplified affidavit process to transfer certain personal property without going to court.
Court Penalizes Stepdaughter for “Fraudulent” Affidavit
The affidavit process only applies to personal property such as bank accounts and stocks, and not real estate, like your house. The person who has the legal right to inherit the property must file the affidavit after your death. If you have a will, that means the beneficiaries you named to inherit your property. If you do not leave a will–i.e., you die intestate–then your heirs under California law have the right to file the affidavit.
It is important to clarify who your beneficiaries or heirs are before you die in order to avoid any potential confusion. A family member might incorrectly assume they have rights they do not, which in turn can lead to extended litigation.
Consider a recent case from Riverside County. This case involves a woman who filed an affidavit to take possession of a bank account that belonged to her deceased stepfather. Although the stepdaughter’s mother was married to the stepfather for close to 50 years, he never legally adopted her as his child. To complicate matters, the stepfather had at least two daughters that he apparently had little or no contact with.
The stepdaughter was aware of one of the daughters. After the stepfather died, without leaving a will, the stepdaughter filed an affidavit with the probate court identifying herself and the daughter as the only heirs. Based on this affidavit, the stepdaughter took the proceeds of the stepfather’s bank account–more than $116,000 altogether–and divided it between her and the daughter.
About a month later, the second daughter was located. She then asked the probate court to order the other daughter and the stepdaughter to return the $116,000, arguing it was obtained under a fraudulent affidavit. The probate judge agreed and actually ordered both women to pay triple the money back as an additional penalty.
As the California Fourth District Court of Appeals in San Diego explained in an unpublished order agreeing with the judge’s decision, the stepdaughter did two things wrong. First, she misled the probate court by neglecting to mention the second daughter as an heir. Even though this daughter had not yet been located when the affidavit was filed, the stepdaughter was aware of her existence via a birth certificate shown to her by the first daughter.
Second, the stepdaughter was not a legal heir of the stepfather. Stepchildren have no standing under intestacy law. The stepdaughter incorrectly assumed that she was entitled to half of the bank account because it has previously been a joint account with her mother, who actually died a few weeks before her husband. But because the mother died first, her share of the account automatically passed to her husband, not her daughter.
Avoiding Probate Confusion
This is yet another illustration of what can go wrong when you fail to leave a will. If you have a stepchild that you wish to favor over a natural child, you are free to do so. But if you never make a will or trust expressing those wishes, California law will just assume you wanted your natural children to inherit, regardless of the state of your actual relationship.
If you want to avoid this kind of confusion, you need to speak with a qualified California estate planning attorney. Call the Law Office of Scott C. Soady in San Diego today to schedule a consultation.