PROBATE

Published on: May 23, 2013

What Happens to My Car After I Die?

The executor of a British estate was recently caught transferring the deceased’s car, worth about $1,240, to his own stepdaughter for the private use of her and her boyfriend. The fraud became public knowledge when the couple broke up and the boyfriend subsequently told his friends, who in turn informed the executor’s employers, a local law firm. John Patson, the executor in question, received a suspended four-month jail sentence from a local magistrate in the English town of Ipswich.

This odd little tale may lead you to ask what will happen to your car after you’re gone. The California Department of Motor Vehicles regulates all automobile transfers and sales in the state and there are specific procedures for probate and non-probate transfers following an owner’s death.

Transfers Without Probate

Published on: April 26, 2013

How Will My Estate Pay Administration Expenses?

by Scott C. Soady

Most people see a last will and testament simply as a vehicle for distributing their property after they are gone. But a properly drafted will must also address the more technical details of the probate process. For instance, who will pay for the expenses incurred in administering your estate? Even relatively simple matters must deal with certain basic expenses, including attorney’s fees, payment of a probate referee for any required appraisals, filing fees with the probate court and preparation of tax returns. If you have any enforceable debts at the time of your death, the estate must find a way to pay those as well.

The Importance of the Residuary Estate

A last will and testament generally distributes property in two ways. The first is through a specific bequest naming the property and beneficiary, e.g. “I give my jewelry to my daughter, Mary Smith.” The other is through your residuary estate. As the name implies, this is the “residue” or leftover property that is not distributed through specific bequests. In theory, you could use one form of distribution exclusively. You could make specific bequests of all property and leave no residuary estate, or, vice-versa, make no specific bequests and leave everything to the residuary estate.

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 23, 2013

Probate Referees Can Settle the Value of Your Estate

by Scott C. Soady

How much is your estate worth? Most of us don’t contemplate this question on a daily basis. But in California estate planning, determining the “market value” of your assets is critical. When a will is filed, the probate court needs to see an inventory of the assets you’ve left behind and their estimated value at the time of your death.

California has a unique system for appraising probate estates. In almost all cases, the court requires appointment of a probate referee, a person authorized by the State of California to appraise all real and personal property in an estate. All probate referees must pass a licensing exam administered by the California State Controller’s office and complete yearly continuing education requirements. The probate court in each county then appoints probate referees to serve a term of not more than four years.

When an executor opens a new estate, he or she must file a list (or inventory) of the estate’s assets with the probate court. The probate referee then must prepare an appraisal of within a 60-day period for all properties (excluding cash). The estate, not the court, pays the probate referee’s fees, which is 1/10 of 1% of the value of all appraised property. For example, if the probate referee appraises an estate where the only asset is a home valued at $500,000, the estate would owe the referee a fee of $500.

Published on: March 14, 2013

How Does Owning Property in More Than One State Affect My Estate Planning?

by Scott C. Soady

If you’ve just moved to the San Diego area from another state, it’s a good idea to consult with a California estate planning lawyer to revise your Last Will and Testament. You should do the same if you’re leaving for another state. Every state has its own probate laws that can affect your estate differently. And if you own property in more than one state, it may become necessary for your executor to open an ancillary estate, which can significantly add to the costs of probate.

The most common reason for an ancillary probate is a deceased person owns real estate outside of his or her home state. For instance, let’s say you live in California and own a house here, plus you own a vacation home in Arizona. After your death, your executor will open a primary estate in California to dispose of your home and personal property here, and an ancillary estate in Arizona just to do deal with the vacation home.

Personal Property May Require Separate Probate Proceeding

Published on: February 21, 2013

Who Can Contest a Will?

by Scott C. Soady

You often read news stories (or see fictional dramas) where aggravated family members “contest” the will of a relative. But can anyone contest a will? In California the established law is that a person cannot contest a will unless he or she is an “interested person” in the estate of the deceased.

So what constitutes an interested person?

Interested persons include those named as beneficiaries under the will and those who would stand to inherit if there is no will (or the purported will is declared invalid). Members of the former group are legatees while the latter are heirs. Since a valid will normally controls the distribution of a deceased person’s property, heirs may be excluded from inheriting altogether. Conversely, if a will is successfully contested and declared invalid, any legatees (who are not also heirs) may lose their claim to an estate.

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.

Published on: November 5, 2012

Court Rules That Woman Must Give Up Inheritance of Kafka Papers

by Scott C. Soady

An international court ruled this week that a large amount of extremely valuable and historical papers be turned over to the Israeli national library. A recent New York Times article delved into the high-profile case. Of course, it is important to keep in mind that the way this international court ruled may not have been the same as an American court. Nevertheless, this case is a wake up call to all that without careful estate planning in relation to how an individual wants to handle his or her personal property that it could end up in a bitter and costly legal battle.

The Story

Franz Kafka was a famous and influential author in the early 20th century. His papers included tens of thousands of pages, written by Kafka and his long-time friend and journalist, Max Brod.

Published on: September 7, 2012

Basic Steps Following the Death of a Loved One

by Scott C. Soady

The first experience some have with estate planning issues occurs immediately after a loved one has passed away. This is unfortunate. Without any prior planning, a death comes with a range of complicated paperwork tasks–grieving relatives are often forced to handle complex affairs in the midst of great emotional turmoil. This is one reason why family feuds and in-fighting are quite common after the death of a loved one.

There remains a huge difference between no end-of-life planning and some planning.

A story on end-of-life planning in the upcoming issue of Consumer Reports offers some helpful guidance on the critical difference between dealing with the consequences of a death ahead of time and waiting until afterwards to figure it all out. Some matters have to be handled by family members and others can be dealt with by professionals.

Published on: August 21, 2012

Bucking the Odds: Michael Jackson’s Will Leaves Little Legal Uncertainty

by Scott C. Soady

Most stories about celebrity estate planning have one thing in common: they involve planning errors and drawn-out legal battles. But it is important not to overlook the other examples–where planning documents are straight-forward and opportunity for challenges are few and far between. At the end of the day, when knowledgeable experts are used to create effective plans there is little or no confusion about how to handle affairs. This is true for celebrities and non-celebrities alike.

Take, for example, legendary pop star Michael Jackson. Considering Jackson’s colorful life and well-

known family controversies, one might assume that the battle over his estate would be fraught with similar drama. Not quite. Surprisingly, most familiar with the case explain that there is very little wiggle room for involved parties to challenge his will.