NEWS AND COMMENTARY

Published on: August 30, 2013

Prosecutors Allege Will Forgeries Led to Fraud Against Estates

Under the probate laws of California and every other state, if a person fails to make an estate plan or leave a last will and testament, his or her estate will automatically pass to the next-of-kin, as defined in law. That may lead you to think of estate planning as unnecessary. After all, why bother when I would just leave my estate to my next-of-kin anyways? Unfortunately, there are cases where unscrupulous individuals take it upon themselves to “plan” your estate without your knowledge or consent.

IRS, U.S. Attorney Pursue Ohio Properties Recently, prosecutors in Ohio and Pennsylvania uncovered evidence of forged wills and other estate planning documents used to steal the estates of wealthy decedents. The Ohio case involves the estate of the late Martin Fewlas, a Toledo real estate investor who died leaving more than $2.2 million in assets. Fewlas died in 2010 while residing in one half of a Toledo duplex that he owned. The other half was rented by Margaret McKnight; her boyfriend, Kurt Mallory; and his father, Gary Mallory.

In September 2010, McKnight filed Fewlas’s purported last will and testament, which named her as the executor and sole beneficiary of the estate. Both Mallorys were listed as witnesses. Although Fewlas was a widower at the time of his death, court records identified at least three living relatives who would have inherited the estate absent a valid will. Nevertheless, the Lucas County Probate Court admitted the will and declared the estate closed in 2012.

Published on: August 29, 2013

Court Rejects Late Challenge to Previously Admitted Will

by Scott C. Soady

Jose Marbaix died in March 2011. Marbaix, who was in her 80s, apparently had no living heirs, and her estate plan apparently consisted of a handwritten-or holographic-will found after her death by the Los Angeles County Public Administrator’s office. Every California county has a public administrator to oversee estates where the deceased has no known heirs and there is no executor named. Accordingly, the Los Angeles Public Administrator filed Marbaix’s holographic will and asked a probate judge to admit it to probate.

Marbaix’s will left a “significant” portion of her estate to a variety of charitable organizations, including the American Lung Association, the ASPCA, Paralyzed Veterans of America and the World Wildlife Fund. After the court admitted Marbaix’s will to probate on October 14, 2011, these organizations filed a petition for an official determination of the “persons entitled to distribution of the decedent’s estate.” When such a petition is filed, any “interested person” in the estate-which would include any heirs or beneficiaries named in the will-may file a statement in support of, or opposition to, the request for distribution.

In this case, a man named Vincent Bagby appeared with an unusual claim. In July 2012, he filed a statement with the court objecting to the proposed charitable distributions and the probate of Marbaix’s will. Bagby, whose relationship to Marbaix was not established in the court record, said that Marbaix had signed a will in 2009-the probated will was dated 2006-that left the bulk of her estate to him. Bagby produced this alleged superseding will and asked it be admitted to probate in place of the 2006 will.

Published on: August 28, 2013

California Appeals Court Addresses Forced Sterilization of Woman Under Conservatorship

by Scott C. Soady

Conservatorships are often thought of in the context of a person caring for an elderly parent who is no longer capable of making his or her own decisions. But conservatorships can also involve a parent caring for a physically or developmentally disabled adult child. These situations raise complex legal questions regarding the limits of personal liberty, as proven by a July 31 decision of the California 4th District Court of Appeal in Santa Ana.

The unnamed appellant in this case is a 25-year-old developmentally disabled woman. Upon reaching her 18th birthday, a probate judge appointed the woman’s mother as her “limited conservator,” authorizing the mother to direct her daughter’s medical care. For many years, the daughter has suffered from “severe and debilitating migraine headaches” related to an irregular menstrual cycle. After a number of treatments failed to treat the migraines, an obstetrician-gynecologist recommended the daughter undergo a total hysterectomy.

Although the daughter indicated she approved of the surgery, legally should could not give “informed consent,” so her mother, as conservator, had to petition the probate court for permission to proceed with the hysterectomy. The court appointed a public defender to represent the daughter’s legal interests.

Published on: August 16, 2013

Who Will Act as My Conservator?

by Scott C. Soady

When an elderly parent becomes unable to make his or her own decisions regarding finances and medical care, an adult child or other person must assume the role of conservator. Through proper estate planning, a person can nominate, in advance, a conservator to act should the need arise. In the absence of such planning, however, it often falls to a probate judge to determine which person will act in the conservatee’s best interests.

Under California law, if a person does not nominate his or her own conservator, the probate court has the “sole discretion” to appoint one. The court must give preference, in descending order, to the person’s (1) spouse or domestic partner, (2) adult child, (3) parent, (4) sibling, or (5) any other person who offers to serve as conservator. When two or more people seek to act as a conservator, the court will follow the preference order only if the judge determines each petitioner is “equally qualified.”

Sibling Disagreement Leads to Outside Intervention

Published on: July 22, 2013

Utah Woman’s Disappearance Highlights Importance of Estate Planning

by Scott C. Soady

Susan Cox Powell disappeared in December 2009. The former West Valley City, Utah, mother of two was last seen attending church with her family. Police and West Valley City residents long suspected Powell’s husband was responsible for her disappearance (and presumed death). Tragically, the husband killed himself and his children by exploding his home in Washington State in 2012. Another suspect, the husband’s brother, killed himself this past February. On May 21, West Valley City police formally closed its investigation into Powell’s death, citing a lack of evidence and living suspects.

Police disclosed several hundred pages of documents related to the Powell investigation, including a handwritten four-page note labeled “Last Will & Testament for Susan M. Powell.” The document was not a traditional will. It made no distribution of Powell’s property or affairs, aside from a request that her parents be “very involved & in charge of” her children’s lives. Mostly, Powell’s will is a statement for the benefit of police regarding her decaying marriage and the fear that her husband might try to kill her. “If I die,” Powell wrote, “it may not be an accident, even if it looks like one.”

Are Handwritten Wills Valid (or Advisable)?

Published on: June 27, 2013

Supreme Court Issues Pair of Historic Rulings on Same-Sex Marriage

by Scott C. Soady

On June 26, the United States Supreme Court handed down two decisions addressing same-sex marriage. One case dealt with Proposition 8, an initiative adopted by California voters in 2008 banning same-sex marriage in the state. The second case was a constitutional challenge to the Defense of Marriage Act (DOMA), a 1996 act of Congress prohibiting federal recognition of same-sex marriages.

In each case a divided Supreme Court provided relief in favor of same-sex couples. The Proposition 8 case was decided on a procedural issue, however, while the Court emphatically held a portion of DOMA to be unconstitutional. Both decisions present important legal and estate planning questions for same-sex couples going forward.

Federal Government Must Recognize Valid Same-Sex Marriages

Published on: May 24, 2013

LA Woman Faces Loss of Home

by Scott C. Soady

The Los Angeles Times recently reported on the plight of Marianne Blend, a 78-year-old woman facing the loss of her home due to what the Times called “probate confusion.”

Bland’s problems arise from the 2011 death of Fernando Neri, her longtime partner. Bland and Nerri lived together as husband and wife but never married. California does not recognize common-law marriages, however, and Bland does not have the same rights as a surviving spouse under probate law.

Nerri left a handwritten will leaving his Highland Park house to Bland, who was also named executor of the estate. For reasons not made clear in the Times article, the will was apparently never filed with the probate court, and the Los Angeles County Public Administrator took control of the estate. Public administrators are appointed in each California county to manage the estates of decedents and “at-risk individuals” who are deemed unable to make decisions for themselves. A public administrator may act if a person leaves no will or there is no person available to otherwise act as executor.

Published on: April 24, 2013

Failure to Promptly Secure Counsel Can Prove Costly in Estate Litigation

by Scott C. Soady

It’s an unfortunate reality that death often results in litigation. If a person dies as the result of injuries caused by others, that person’s estate may seek restitution in the courts. There may also be litigation over debts owed to the deceased. The possibility of postmortem litigation is just one factor that should inform your choice of an executor and the need for an experienced California probate lawyer to advise the estate of its rights and obligations.

Confusion over an estate’s representation can prove especially costly. A recent high-profile decision by a federal judge in Los Angeles offers a cautionary tale. The case involves the Estate of Derek Boogaard, a Canadian hockey player who played for the National Hockey League’s Minnesota Wild and New York Rangers. Boogaard was addicted to prescription narcotics and sleeping pills. In May 2011, he died in his sleep from a combination of these drugs and alcohol.

Boogaard previously signed a four-year contract with the Rangers in 2010. Player contracts are guaranteed for their full term under the collective bargaining agreement between the NHL and the NHL Players Association, the union to which Boogaard belonged. Due to Boogaard’s death,

Published on: April 11, 2013

U.S. Supreme Court Hears Challenge to California Same-Sex Marriage Ban

by Scott C. Soady

The political and legal debate over California’s policy towards same-sex marriage reached the Supreme Court on March 26 when the justices heard arguments in Hollingsworth v. Perry. This is the first of two cases where the Court may address the federal constitutional rules governing same-sex marriage. The Hollingsworth decision in particular may finally provide some California estate planning guidance for same-sex couples, and their families, trapped in legal limbo.

The Hollingsworth case deals with California Proposition 8, a voter initiative adopted in November 2008 amending the state constitution to define a marriage between and a man and a woman as legally valid. This overturned a May 2008 by the California Supreme Court declaring a statutory ban on same-sex marriage unconstitutional. After Proposition 8 passed, opponents filed a federal lawsuit seeking its invalidation under the “due process” and “equal protection” clauses of the Fourteenth Amendment to the United States Constitution.

The San Francisco-based Ninth Circuit U.S. Court of Appeals agreed with Proposition 8 opponents that limiting marriage to opposite-sex couples violated the federal Constitution. However, the appeals court stayed its decision pending a final decision from the Supreme Court, meaning no same-sex marriages may be performed until and unless the justices affirm the Ninth Circuit’s order. The Supreme Court is expected to issue its decision in Hollingsworth sometime in late June.

Published on: February 12, 2013

Does a Domestic Partnership Agreement Apply After Marriage in Probate?

by Scott C. Soady

While the status of same-sex marriage in California remains pending before the United States Supreme Court, domestic partnerships remain a legal option for any two adults–regardless of gender–who wish to register their relationship with the state. California law affords registered domestic partners the same “rights, protections, and benefits” as spouses. And as one recent California case demonstrates, courts will look at domestic partnership agreements in much the same way as premarital or prenuptial agreements.

However, there is still some confusion about how different relationship status may affect legal issues, such as probate matters.

In December 2012 a California Court of Appeal panel in San Francisco rejected an appeal brought by Johnlang Konou against the Estate of Philip Timothy Wilson. Konou and the late Dr. Wilson had registered as domestic partners in California in 2006. In mid-2008 when same-sex marriage was legal in the state–before the passage of Proposition 8–Konou and Wilson married. Wilson committed suicide in November 2008, three days after Proposition 8 passed.