NEWS AND COMMENTARY

Published on: March 12, 2016

Does My Will “Expire” After a Certain Number of Years?

Estate planning should not be a one-time event. As your life, family, and financial situation changes, you should periodically revisit and revise your estate plan accordingly. That said, it is important to understand that a will does not come with an “expiration” date. If you sign a will today and leave it untouched for the next 50 years, that same will is still legal and admissible before a California probate court.

Probate Court Admits 50-Year-Old Will

For example, a California appeals court recently upheld the admission of a will signed in 1965 by a person who died in 2012, some 47 years later. The deceased was a married woman who had separated from her husband some months prior to her death. The husband, believing his wife had died without leaving will, asked a probate court to appoint him as administrator of her estate.

Published on: March 11, 2016

Can the State of California Take My Estate After My Death?

by Scott C. Soady

A last will and testament allows you to specify the persons (or other entities, like charities) who will inherit your property after your death. If you fail to leave a valid will, California law provides for automatic inheritance by your heirs. But what happens if you do not have any heirs, or such heirs cannot be found after your death? In such situations, the State of California may claim—or escheat— your property for itself.

California Holds Billions in Unclaimed Assets

This is not just an issue that affects the estates of deceased individuals. All states have “unclaimed property” laws that allow government officials to seize private property if the rightful owner cannot be located for a certain period of time. In California that period is three years. So if you opened a checking account 10 years ago and have made no deposits or withdrawals since then, and had no contact with the bank, the state may seize the account as unclaimed property.

Published on: March 6, 2016

Planning for Succession in a Living Trust

by Scott C. Soady

When you create a revocable living trust as part of your estate plan, it is typical to name yourself as the initial trustee. This allows you to retain maximum control over the trust assets during your lifetime. But there may come a time when you are no longer physically or mentally capable of administering the trust yourself. This is why your trust should always contain a disability clause that provides a clear method for determining when and how you may be removed in favor of a successor trustee.

Father’s “Disability Panel” Conflicts With New Wife

A disability clause may be especially helpful in cases where the person making the trust is under the undue influence of someone else. A recent case from here in San Diego offers a useful illustration of this point. This case involves a still-living man who created a trust in 1998, which he revised in 2008. Under the 2008 revision, the man appointed his three children and one of their spouses as a “disability panel” to make a “final, binding, and controlling” determination should he become disabled and unable to continue as trustee. If and when the disability panel made such a finding, one of the man’s sons would take over as successor trustee.

Published on: March 3, 2016

California Conservators May Not Unilaterally Cut Off Family’s Access

by Scott C. Soady

In California, like all states, a probate court may appoint a conservator to act on behalf of a people who are unable to care for themselves or their property. Once appointed, a conservator has broad power to provide for the “care, custody, control, and education” of the person under the conservatorship (the conservatee). But the California legislature recently clarified the conservator’s powers, and the conservatee’s rights, in one important area.

Legislature Clarifies Right to Visitation

The legislature was concerned that conservators may try to cut off a conservatee’s access to family or other loved ones. In a report, a California Assembly committee noted that as “divorce and remarriage become more prevalent in today’s society, there is a greater possibility of conflicts between a second spouse and children from a first marriage.” In such cases, a second spouse who is named conservator of the other spouse may ban the children from visiting or communicating with their parent.

Published on: February 12, 2016

Can Your Children Handle an Inheritance?

by Scott C. Soady

A family business presents unique estate planning challenges. You may want your children to share equally in your overall estate, but at the same time, your children may not be equally capable or invested in your business. It is also important to make sure any child you groom to take over a family is business is capable of doing so. Failure to properly plan in this area can lead to a number of legal problems after your death.

Son Convicted of Stealing Assets From Father’s Estate

Sometimes those legal problems may even include criminal prosecution. Recently a San Diego appeals court upheld the criminal conviction of a man accused of stealing from his late father’s estate. Although this is case is not binding precedent, it does illustrate the types of problems that can arise when there is a lack of proper estate planning.

Published on: February 6, 2016

How a California Power of Attorney Works

by Scott C. Soady

A power of attorney is a document authorizing someone to act on your behalf with respect to financial and contractual matters. Among other acts, a person holding your power of attorney may sell your house, write checks from your bank account, or access your safe deposit box. A power of attorney is “durable,” meaning it continues in effect until you revoke it. Your death would also terminate any outstanding power of attorney.

Daughter Improperly Delegates Father’s Power of Attorney

There are limits to what a person may do under a power of attorney. Here is one illustration from a recent California appeals court decision. This is only an example and should not be construed as a complete statement of California law on the subject of powers of attorney.

Published on: January 29, 2016

How Language in a Will Can Affect the Distribution of an Estate

by Scott C. Soady

Clarity is important when drafting a last will and testament. Your executor must be able to understand your intentions with respect to the disposition of your estate. Likewise, the beneficiaries named in your will have a right to know what they are entitled to. When imprecise terminology is employed, it may lead to confusion, which in turn can lead to litigation.

Wife Ordered to Honor Husband’s Charitable Gifts

Here is a recent example from here in California. This case is only an illustration and not a definitive statement of the law. The deceased in this case made a last will and testament several months before his death in late 2010. The will named the decedent’s second wife as executor and directed she would receive the residue of his estate, including mutual funds, checking accounts, stocks, and so forth. The will also made gifts of “up to” certain specified amounts to the decedent’s first wife and various charitable organizations. For example, the will directed the executor to “leave up to $150,000 from the proceeds from my mutual funds, stocks, cash, and bonds to the [U]niversity of [C]olorado [S]chool of [B]usiness in [B]oulder.”

Published on: January 22, 2016

Apple Reportedly Demands Court Order Before Releasing Deceased User’s Password

by Scott C. Soady

You might think the most difficult part of estate planning would be figuring out how to transfer title to your house or administering a living trust. But for a British Columbia widow, one of the biggest hassles she faced following her husband’s death was gaining access to his Apple account. The California-based technology giant reportedly demanded a court order before it would release the password to the couple’s joint online account.

According to report from the Canadian Broadcasting Company, the widow noticed a game had stopped working on her iPad. It turned out she needed to login to her Apple account, but her husband was the only one who knew the password. The widow’s daughter contacted Apple, but she said customer support gave her the runaround. Nearly two months later, after providing copies of the husband’s death certificate and other personal identifying information, the daughter said Apple told her she needed to get a court order. The family declined to do so due to the cost, but the family told their story to the CBC, Apple acknowledged there was a “misunderstanding” and promised to resolve the issue.

Taking Inventory of Your Digital Assets

Published on: January 13, 2016

California Courts Continue to Deal with Same-Sex Estate Planning Issues

by Scott C. Soady

Although same-sex marriage has been legal in California since 2013, there remain a number of unresolved estate planning issues with respect to the rights of spouses in such relationships. For example, there are cases where the courts must still determine when a same-sex couple was legally married for purposes of determining entitlement to certain retirement benefits. A recent decision by a federal judge in Oakland illustrates how courts are dealing with such questions.

Widow May Pursue Pension Claim Against Spouse’s Employer

This case centers on the pension plan of a woman who passed away on June 20, 2013. This date is important because six days later the U.S. Supreme Court issued two decisions: The first held that the Defense of Marriage Act, a federal law restricting the definition of marriage to opposite-sex couples, was unconstitutional; the second decision overturned an initiative previously approved by California voters which similarly banned same-sex marriage.

Published on: January 2, 2016

Alleged Will Forgery Highlights Risks of Ignoring Estate Planning

by Scott C. Soady

You may not think having a last will and testament is important. But consider the possibility that if you do not make a will, someone else might create one in your name. While not common, will forgery does occur, and the internet makes it easier than ever for someone to present a fraudulent document to a probate court.

Arkansas Realtor Accused of Defrauding Estate of Deepwater Horizon Victim

Recently a federal grand jury in Arkansas indicted a woman for numerous criminal offenses arising from an alleged will forgery. The woman is also facing a civil lawsuit from the legitimate heirs of the deceased individual’s estate. Please note these lawsuits are merely allegations and have not yet been proven in a court of law.