Articles Posted in PROBATE

A legal separation or divorce can have a profound effect on your estate planning. Under the California Probate Code, a “surviving spouse” has no inheritance rights if there is an “order purporting to terminate all marital or registered domestic partnership property rights.” Put another way, if you die without leaving a will, and you are legally separated from your spouse at the time of your death, he or she will not inherit under California intestacy law.

Court Rules Probate Code Language Does Not Apply to County Pensions

The Probate Code does not cover all property issues that may arise after you die. Many retirement and pension plans are governed by separate laws that allow you to designate a beneficiary independent from the provisions of your will or trust. A divorce or legal separation may not necessarily affect such designations.

Doing business with family members is always complicated. It can get even more complicated if one family member dies before a business transaction is completed. Most of us are understandably reluctant to push a legal matter, even one involving estate planning, when a relative is ill or possibly dying. Unfortunately, California judges cannot allow whatever sympathy they might feel for the family to override the law.

Sister Waits Too Long After Brother’s Death to Enforce Contract

Consider this recent case from right here in San Diego. A woman and her husband entered into a real estate deal with her late brother. The brother was in the business of “flipping” properties. The sister and brother-in-law were looking to buy a house for themselves.

There was a time when only legitimate children–i.e., children born to a lawfully married couple–could inherit property from a parent. Modern law in California and most states have largely eliminated the distinction between legitimate and illegitimate children, but it can still be an issue in some probate situations.

For example, a court in the Canadian province of Ontario recently denied a man a share of his late grandmother’s estate because he was born out of wedlock. The grandmother’s will, which she signed in 1977, left shares to each of her “children” or their descendants. Ontario law at the time defined “children” as only including those born in wedlock. Ironically, Ontario changed the law in 1978 to include illegitimate children, but the court in this case said that did not apply to pre-1978 wills.

Establishing Paternity When There is No Will

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.