ESTATE PLANNING

Published on: March 5, 2014

When Is a Child Accidentally Omitted from a Parent’s Will?

It’s important to update your estate plan after a major life event, such as the birth of a child. An accidental omission may be correctable under California law, but it adds to the burden of your estate’s executor and the courts. A recent California Court of Appeals decision demonstrates how a not-so-accidental omission of a child can still lead to costly litigation.

Peltner v. Herterich

This case is discussed here for informational purposes only and should not be treated as a complete statement of California law on this subject. The deceased in this case is Hans Herbert Bartsch, who died in 2008. Bartsch signed a last will and testament in 2007, leaving his estate to various friends and family, most of whom resided in Germany. Bartsch’s will declared that he was unmarried and had no children.

Published on: February 27, 2014

What Happens If I Accidentally Sign My Spouse’s Will?

by Scott C. Soady

It’s common for spouses to execute a joint estate plan, signing their respective wills at the same time under the advice of the same estate planning attorney. What’s uncommon is when the spouses inadvertently sign each other’s wills. While it may sound ridiculous that such an error would go unnoticed, just such a situation occurred in the United Kingdom-and it required a decision by that country’s Supreme Court to correct the mistake.

Marley v. Rawlings

Alfred and Maureen Rawlings made their wills in 1999. They hired a solicitor-an English lawyer who specializes in estate planning-to prepare the documents. The wills were not complicated. Each spouse left his estate to the other, and if the other spouse was already dead, the estate would pass to Terry Marley, a family friend. The Rawlings had two children but, for whatever reason, they chose not to include them in their estate plan.

Published on: February 25, 2014

Presumptions Regarding a Lost or Missing Will

by Scott C. Soady

A last will and testament is an important legal document. It is not something that should be drafted or signed without careful consideration. And once a will is signed, it’s essential to keep the original in a safe place where it may be located after the person’s death.

As a matter of law, an executor must file a signed, complete, and original version of a purported last will and testament. In many cases, an estate planning attorney will have a client sign duplicate originals. While a photocopy of a will has been admitted to probate in some cases, it is never advisable or ideal. California law presumes that a missing will is presumed revoked, assuming it was last in possession of the person who made it. This is only a presumption that can be overcome by additional evidence, such as a photocopy, but again this is neither advisable nor ideal, especially in cases where a will is contested by one or more parties.

In re Estate of Dixon

Published on: February 19, 2014

“Undue Influence” Between Spouses Can Affect Estate Planning

by Scott C. Soady

Marriage may be sacred, but under California law, one spouse cannot take advantage of the other when it comes to estate planning. Spouses have a fiduciary duty to one another, and when one party exerts undue influence over the other, the courts may intervene. Recently, a California appeals court upheld a lower court’s decision to invalidate part of a deceased man’s trust after finding his wife exercised such undue influence.

Lintz v. Lintz

Robert Lintz was a real estate developer worth millions. He was married several times, including twice to his final spouse, Lois Lynne Lintz. Shortly after their second marriage in 2005, Robert Lintz amended one of his trusts-which held his northern California properties-to give his wife a one-half share upon his death. The trust was amended several more times between 2005 and Robert Lintz’s death in 2009, each time increasing Lois Lintz’s share and decreasing the amount left to Lintz’s children from his prior marriages.

Published on: February 17, 2014

The Potential Conflict Between a Prenuptial Agreement and Estate Planning

by Scott C. Soady

How does a prenuptial agreement affect your estate planning? A prenuptial agreement is a contract between intended spouses designed to settle any property disputes that may arise following divorce or the death of one spouse. In many cases, a prenuptial agreement may override state laws providing for certain spousal rights in the other’s estate. That’s why, as with any contract, it’s important for both spouses to fully understand any prenuptial agreement before they sign it. Failure to do so can result in costly litigation down the line.

Liu v. Wang

A recent decision by the California Court of Appeals addressed the interaction of prenuptial agreements and estate planning. Please note this case is discussed here simply to illustrate the types of issues involved and should not be construed as a definitive statement of California law on the subject. The case itself involves a wife’s challenge to a prenuptial agreement with her late husband.

Published on: February 10, 2014

Unmarried Couples May Face Unique Estate Planning Issues

by Scott C. Soady

Estate planning is an important subject for all married couples. It is also an issue though for unmarried couples in long-term relationships. If you are living with a non-spouse partner-and especially if you own property or enter into a business venture with that partner-your estate planning should provide for an orderly distribution of any assets acquired in the course of the partnership.

Married and unmarried couples are treated quite differently under the law. In California, married couples may own community property, or property acquired in the course of the marriage and jointly held by both spouses. Upon the death of one spouse, his or her estate plan may only dispose of up to 50 percent of any community property, with the remainder staying in the possession of the other spouse.

Unmarried couples cannot own community property, but they can hold property as joint owners. For example, they could co-own a home as joint tenants (or tenants in common) or open a joint bank account, but these assets are not community property. Typically, when one co-owner dies, the survivor automatically inherits the deceased partner’s interest. This can be a useful estate-planning tool, as such assets are generally not considered part of a probate estate. For example, if you and your unmarried partner open a joint checking account, you would automatically assume sole title upon your partner’s death without having to go through a formal estate.

Published on: February 8, 2014

California Appeals Court Dismisses Lawsuit Against Attorney Over Unsigned Will

by Scott C. Soady

It’s never a good idea to wait until the last minute to complete an important task. This is especially true when talking about making (or revising) your estate plan. There is nothing you can do about your will or trust after you’re dead, and if you are contemplating a new or amended estate plan, it is imperative you speak right away with an experienced California estate planning attorney.

Don’t Blame the Estate Planning Attorney

Recently, the California Court of Appeals dealt with a lawsuit arising from the failure of a dying woman to complete revisions to her estate plan before her death. This case is not a binding statement of California law, but it provides a useful illustration of the perils of waiting until it is too late. In this case, the deceased woman’s relatives attempted, unsuccessfully, to blame her attorney for the failure.

Published on: February 6, 2014

Jahi McMath Case Raises Concerns Over Definition of Legal Death

by Scott C. Soady

The recent case of Jahi McMath has renewed the media and ethical debate over the question of when an individual can truly be declared deceased. McMath was a 13-year-old girl declared legally brain dead on December 12th, 2013, in Alameda County. The family contested this diagnosis, claiming she still had heart and lung function. Although an Alameda County judge confirmed the hospital’s determination that McMath was dead, the family filed a federal lawsuit, arguing this violated their religious beliefs, as protected by the First Amendment, which hold that McMath is still alive.

Defining “Legally Dead”

A majority of U.S. states, including California, have adopted the Uniform Determination of Death Act, a model law developed at the behest of the White House and the medical community in the early 1980s. California incorporated the uniform act into its Health and Safety Code. The Act defines death as either “(1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.”

Published on: January 26, 2014

How Do You Define “One Acre of Land”?

by Scott C. Soady

When leaving real estate to someone under a trust or last will and testament, it’s important to describe the property in precise enough detail so as to avoid conflicting interpretations. California courts try to construct wills and trusts strictly in conformance with the maker’s wishes. The clearer your wishes, the easier it will be for a court to determine them-and, ideally, the less chance anyone will seek a judge’s interpretation in the first place.

Smith v. Smith

Here’s a recent example-a case from Alabama-where imprecise language in a will spurred litigation between family members. The deceased in this case is Billy Ernest Smith, a horse trainer, who married his second wife Elizabeth in 1996. Smith had two adult children from a prior marriage. When Smith died in 2009, his will gave Elizabeth Smith a life estate in his “house and the one acre of land on which same is situated.” This meant she could continue to live in the house until she left voluntarily, died or remarried. A separate paragraph in the will also allowed Elizabeth to have “her pick of all my horses.”

Published on: January 24, 2014

The Future of Same-Sex Marriage & Estate Planning

by Scott C. Soady

The movement towards legal recognition of same-sex marriage continues unabated. In December 2013, the New Mexico Supreme Court declared that “civil marriage” in that state must be open to couples of the same gender. A day later, a federal judge in Utah held the state’s definition of marriage as “one man-one woman” violated the United States Constitution.

In California, of course, state officials resumed recognizing same-sex marriages following the United States Supreme Court’s June 2013 decision in Hollingsworth v. Perry, a case that defeated an anti-same sex marriage amendment to the state’s constitution. The Supreme Court simultaneously held in a separate case that the Defense of Marriage Act-defining marriage as applying only to opposite-sex couples for purposes of federal law-was unconstitutional. That decision meant federal agencies could no longer deny recognition to same-sex marriages performed in a state where the practice was legal.

On the international front, the Parliament of the United Kingdom approved legislation in July 2013 permitting same-sex marriages in England and Wales, which will take effect in March 2014. (Scotland, which has a separate parliament, is presently considering same-sex marriage legislation for that country.) Similarly, New Zealand’s House of Representatives voted in April 2013 to alter the legal definition of marriage in that country to include same-sex couples. That law took effect this past August.