PROBATE

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: July 26, 2013

Can “Tony Soprano” Instruct His Children From Beyond the Grave?

by Scott C. Soady

James Gandolfini, the film and television actor best known for his starring role in the HBO series The Sopranos, died on June 19 while vacationing in Italy. The New York Post reported on July 3 that Gandolfini, a New York City resident, left an estate valued at nearly $70 million. According to the terms of Gandolfini’s last will and testament, filed in New York County Surrogate’s Court, most of the late actor’s estate will go to his two children.

Gandolfini’s will identified two principal real properties, a New York City condominium and a house in Italy. Gandolfini directed his executors to grant the first option to purchase his New York condo to a trust created for the benefit of his son. His Italian home, and the surrounding land, will be held in trust until his children reach 25 years of age, at which point they will each receive a 50% interest in the property.

Precatory Language & Beneficiaries

Published on: July 24, 2013

Brothers Fight in Court When Mother’s Will Fails to Name an Executor

by Scott C. Soady

A key element of a well-drafted last will and testament is the appointment of an executor to manage the affairs of your estate. If you fail to name an executor, or the person or persons you name are unable to serve, a probate court must intervene and appoint a person to run your estate based on the provisions of California law. This can lead to prolonged litigation between interested who may compete for the right to manage your estate.

A recent California appeals case highlights the dangers of failing to name an executor in your will. This case is discussed here purely for informational purposes and should not be treated as legal advice or a binding statement of California law. The facts are unique to this case.

Estelle Manwill died in March 2011. Shortly before her death she executed a holographic (hand-written) will in the presence of several witnesses. The will divided Manwill’s real property among her five children. Unfortunately, Manwill failed to name an executor in her will. Two of her sons, David G. Manwill and Mark Manwill, each filed petitions to be named personal representative of their mother’s estate. (In this context, executor and personal representative both refer to a person who manages an estate, with the former referring to a person specifically named in a last will and testament.) Their siblings objected.

Published on: July 11, 2013

Sibling Rivalry Spills Over Into Probate Court

by Scott C. Soady

Estate planning requires you to appoint one or more people to act as your agent or fiduciary under a number of conditions. A power of attorney designates an agent to act in your name while you’re still alive. If you create a revocable trust, a trustee manages those properties you choose to transfer into the trust. And after you’ve passed away, a personal representative or executor supervises your probate estate.

You may have cause to change the appointments and designations of these agents during your lifetime. When, as is often the case, your intended agents are family members, bad blood can lead to significant conflict that may be exasperated by your death. A recent California case illustrates this. Please note this example is provided purely for informational purposes and should not be construed as a binding statement of California law.

Sisters Fight Over Fate of Their Mother’s House

Published on: July 5, 2013

Dealing With Social Security and Final Benefits & Expenses

by Scott C. Soady

In May the Inspector General of the Social Security Administration reported that the government continued to pay benefits to over 182,000 people previously reported as deceased. It’s only a small percentage of the estimated 2.5 million deaths reported to the SSA each year, but it shows how even death can become lost in the bureaucracy. If you’re on the other end–as the executor or administrator of a deceased loved one’s estate–it’s equally important you understand the law as it relates to “last” benefits.

Social Security and Pension Benefits After Death

Let’s say your widowed, elderly mother recently died. She was receiving Social Security and her monthly check came in a few days after her death. Can you cash the check? No. Under the Social Security Act, the federal law governing benefits, a person must be alive for the entire month covered by the check. So if you’re mother normally received her check on the 15th of the month and she died on the 12th, you must return the check. Likewise, if Social Security direct deposited your mother’s benefit into her bank account, the government will instruct the bank to debit her account to reverse the transaction.

Published on: June 26, 2013

The Ramifications of Disinheriting a Child

by Scott C. Soady

Disinheriting a child sounds like a harsh act. The word conjures up images of an angry parent taking out a lifetime of disappointment with a child by denying him or her any inheritance. Yet there are many cases where disinheritance is simply based on the testator’s appraisal of his children’s relative financial positions.

An interesting historical example of disinheritance involved the former king of Great Britain, Edward VIII, who succeeded his father, King George V, in January 1936. The new king was surprised to learn he inherited nothing from the £3 million estate of his father. King George reasoned that since Edward would enjoy the income from properties held in trust for him as king, he would leave his private fortune to his other four children. (This later became an issue when Edward abdicated the throne in favor of his brother.)

While your own estate may not amount to a king’s ransom, it’s not uncommon to intentionally exclude a financially secure child from a will or trust in favor of providing for other children or family members. California law, however, requires clear manifestation of your intent to disinherit a child. If you make a will or trust and subsequently have additional children, California presumes you intended to provide for those children in your estate unless you amend your estate planning documents accordingly. Absent such explicit language, those children will automatically inherit the same share of your estate as if no will or trust existed at all.

Published on: June 25, 2013

California Court Rejects Improperly Witnessed Will of Man Found in Apartment Wall

by Scott C. Soady

Truth is often stranger than fiction when it comes to California probate cases. In May a state appeals court ruled on a particularly strange case involving a contested last will and testament. The case started with the 2004 disappearance of a Berkeley man who was found more than four years later stuffed into the wall of his own apartment building.

The man was Taruk Joseph Ben-Ali. Taruk’s father, Hassan Ben-Ali, was a real estate investor who owned and operated a number of properties. In 1993, Hassan transferred title to an apartment building on Ashby Avenue in Berkeley to his son (apparently due to Hassan’s failure of losing the property due to unpaid federal taxes). Hassan continued to manage the building even after transferring legal title to his son.

On August 3, 2002, Taruk married Wendelyn Wilburn over his father’s strenuous objections. In June 2004, Wilburn was in Las Vegas on business. She attempted to call her husband back in California but could not reach him. Subsequently, Hassan told Wilburn that Taruk had left her to “start a new life somewhere else,” according to court records. Taruk was never reported missing and Hassan continued to manage the Asbury Avenue building.

Published on: June 17, 2013

Should a Family Member Draft My Will?

by Scott C. Soady

When it comes to drafting your last will and testament or other California estate planning documents, it’s important you work with an attorney who is not only knowledgeable and experienced, but also someone who is impartial and not looking to benefit financially from your future estate. To that end, the California Probate Code specifically prohibits making a transfer by will, trust or similar instrument to the person who drafted that instrument or anyone related to that person. This means, for example, that a probate court will not honor a will leaving a person’s estate to the attorney who drafted that will–or the attorney’s wife, law partner, child, et cetera.

There is an exception, however, for attorneys who are already related by blood, marriage or civil partnership to the person making the will. If your son is an attorney and drafts a will for you where he’s a beneficiary, that would be valid under California law. Things can become more complicated when dealing with attorneys related by marriage, as a recent California Court of Appeals case demonstrates. This case is only discussed here for informational purposes and should not be construed as a statement of the law and is only for illustrative purposes.

Step-Children Can Complicate the Process

Published on: May 31, 2013

Dying Without a Will Can Leave Your Estate Vulnerable to Unscrupulous Relatives

by Scott C. Soady

If you die without leaving a last will and testament, your estate may be left at the mercy of unscrupulous relatives who will take advantage of the situation. While California law does provide for cases of intestacy–estates where the deceased left no will–relatives without legal knowledge may be unaware of their right to inherit part of your estate. That’s why it’s important to work with an experienced San Diego estate planning attorney who can help you and your relatives prepare a will that, hopefully, keeps everyone out of court after you pass on.

Taking Advantage of Intestacy

A recent case from the California Court of Appeals shows what may happen when relatives exploit the confusion that can arise from an intestate estate. (Please note this case is only discussed here for illustrative purposes and should not be taken as a definitive statement of current California law.) David Mack left an estate valued at approximately $700,000. He died without a wife, children or will, so California intestacy law required the division of his estate among his living siblings and the heirs of any previously deceased siblings.