PROBATE

Published on: February 21, 2016

Defective Language in a Will or Trust Can Lead to Probate Problems

A good estate plan should provide clear directions regarding the disposition of your property after your death. If your estate plan includes a trust, it is important to transfer title to any any assets you wish to place in the trust. Even if you have a trust, you still need a properly executed will to ensure there are no “loose ends” when it comes to administering your estate.

Sons Fight Over Ownership of Deceased Father’s Property

Here is an illustration from a recent California case of what can happen if an estate plan is not completely in order. In 2001, a man with three adult sons created a living trust as part of his estate plan. He simultaneously signed a deed transferring a parcel of real property in Long Beach into the trust. The subsequently signed an amended trust in 2006 together with a will.

Published on: February 19, 2016

Can You Make a Contract Not to Change Your Will?

by Scott C. Soady

If someone promises to include you in a will or estate plan, and do not for whatever reason, you generally have no legal recourse. An oral promise to take some future action is not, in and of itself, a legally binding commitment. However, if you have a written contract with someone regarding a future estate planning action, that may be enforceable in a California court. This is sometimes known a a “contract to make a will.” Like all contracts, there must be more than a unilateral promise: There must be an offer, acceptance, and consideration.

Handwritten Note Not Sufficient to Block New Will

Consider a recent California appeals court decision on this subject. This case is only an illustration and not a complete statement of California law. A father of five children signed a will in 2003. In 2004, following a dispute over the disposition of his late wife’s estate, three of the children met with their father, at which time he signed a handwritten document addressing the wife’s estate and further stating, “I am not revoking [my 2003 will] and the distribution to my children remain [sic] as written.” The 2003 will left the father’s estate to his five children in equal shares.

Published on: February 14, 2016

What Happens If My Heirs Die a Few Days After Me?

by Scott C. Soady

One scenario you need to consider as part of your estate planning is the possibility of you and your heirs dying at the same time. A common example of this would be a husband and wife killed in a car accident. If each spouse signed a will leaving their estate to the other, this could create a conundrum. This is why it is generally a good idea to include a survivorship clause in your will. Such a clause specifies a time period a person must survive you in order to inherit under your will. Any person who dies within the specified time period will be treated as if they died before you.

Twin Sisters Die Within Days, Litigation Ensues

A recent San Diego case illustrates how survivorship clauses work. This case is only an illustration and not a complete statement of California law on this subject. This case involves a pair of sisters—twin sisters, actually—who sadly died within five days of each other.

Published on: February 3, 2016

What Happens if My Estate is Insolvent?

by Scott C. Soady

Normally when we talk about estate planning, we assume there will be an estate with sufficient assets to provide for a person’s heirs. What happens if you die with more debts than assets? In legal terms, this is known as an “insolvent estate,” and California law establishes certain rules to deal with such a situation.

California’s Order of Priority for Estate Creditors

First of all, even if you have a will, you cannot use it to avoid paying certain obligations. For example, you cannot direct the executor of your estate to give all of your money to your children and not pay your creditors. California law sets an order of priority for paying any debts from the assets of an estate. Some debts are given higher priority than others, and much like a bankruptcy case, the lower priority creditors may receive nothing from an insolvent estate.

Published on: January 5, 2016

Dealing With Non-California Property in a California Trust

by Scott C. Soady

Estate planning is especially important when you own property in more than one state. Although your will is generally subject to the law of the state in which you reside at the time of your death, there may be a need to open an additional (or “ancillary”) estate in any other state where you own real estate or other property outside of California’s jurisdiction. In some cases, your estate may be liable for another state’s taxes.

Brothers Fight Over Nebraska Property in California Court

Here is a recent example. A California husband and wife created a living trust and transferred all of their property into it, including two pieces of farmland in Nebraska that the wife’s family had owned for more than a century. According to the terms of the trust, after the couple died, the trust’s assets were to be equally divided between their two children. The trust also required a division of the trust into “A” and “B” subtrusts after the first spouse died. This is a common estate planning tool used to keep the surviving spouse’s property in trusts separate and apart from the deceased spouse’s property.

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.

Published on: December 7, 2015

Not Leaving a Will Can Leave Your Heirs Confused

by Scott C. Soady

It is never a good idea to avoid estate planning. While California law does provide for the distribution of estates without a will—that is, persons who die intestate—this often ends up costing your estate (and heirs) additional time and money. In addition, if you do not make a will, you forfeit any say over who will take responsibility for your assets as executor, which can lead to further delays in settling your affairs.

Lack of Will, Grandson’s Litigation Delays Distribution of Oakland Woman’s Estate

Intestate estate distributions can also be more complicated than you might think. Consider this recent California case, which is provided here merely as an illustration and not a complete statement of the law. The deceased in this case was an elderly woman who died without a will. She left one “significant asset,” her home in Oakland. One of the deceased’s granddaughters was named her personal representative of the estate. She apparently failed to perform her duties as personal representative, however, and four years later, the court named her attorney—who said he was “unable to reach his client”—as special administrator just to get a formal accounting of the estate filed.

Published on: November 8, 2015

Joint Estate Planning Can Still Lead to Complications

by Scott C. Soady

Many spouses choose to execute a joint estate plan. For example, they may sign wills at the same time and promise to distribute property a certain way after the first spouse dies. Such agreements may be enforceable under California law, but it is important to follow certain procedures in the event the surviving spouse deviates from the plan. Things can get especially complicated when different family members in different states are involved.

Stepchildren Unsuccessfully Challenge Stepmother’s Trust

Here is a recent example. This case involves the application of California law to a complaint made before a federal court in New York. A husband and wife executed a joint estate plan in 1995. They agreed the surviving spouse would inherit all of the deceased spouse’s property, and upon the surviving spouse’s death, any remaining property would go to the husband’s two children from his first marriage. At the time of this agreement, the husband’s property included two apartments in New York City.

The husband died in 1998. The wife probated her husband’s will and, according to its terms, received all of his property, including the two apartments. Four years later, the wife created a revocable trust under New York law and transferred both apartments into it. She served as co-trustee together with her attorney. Unlike her will, which left her probate estate to her stepchildren, the trust provided a university located in New York would receive all of the trust assets upon her death.

Published on: October 19, 2015

Why Your Will Needs to Be Witnessed

by Scott C. Soady

Although you often hear stories about people contesting a will, it is not a simple process. Under California law, a person contesting a will has the burden of proving “lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” In contrast, the person offering the will for probate only has the burden of proving “due execution,” that is, that the purported will meets the formal requirements of California law. So in most cases, proper estate planning can thwart a will contest.

Surviving Witness Proves Will 14 Years Later

Like most states, California law requires a will be signed by the person making it (the testator) and two witnesses. The witnesses need not read the will or understand its contents. Their role is simply to witness the testator declare the document in question is, in fact, his or her will. The witnesses must then sign the will in the presence of the testator and each other.

One reason wills must be witnessed by two people is that in the event of a contest, at least one of them will hopefully be available to testify in court as to the authenticity of the document. Here is an illustration from a recent case in San Diego which is discussed here for informational purposes only and should not be taken as an accurate statement of the law. This actually involved a contest to a will nearly 14 years after the testator’s death.

Published on: October 7, 2015

What Happens When Children Fight Over a Parent’s Estate?

by Scott C. Soady

You may think estate planning is unnecessary because California intestacy law automatically provides for the distribution of assets to your heirs, but intestacy law does not eliminate the need for an estate. Someone must still take responsibility for administering those assets and ensuring your heirs receive their fair share. Even when dealing with family members, this can fail to happen, leading to years of costly and unnecessary litigation.

Brothers Attempt to Exclude Sister from Father’s Estate

Here is a recent example from here in California. This case involves a man who died nearly 24 years ago without a will. Under California intestacy law, his three surviving children-two sons and a daughter-were entitled to equal shares of his estate. The estate itself included over 760 acres of timber property.

In the absence of a will nominating an executor, the probate court appointed one of the sons as administrator of the estate. Rather than sell the land and distribute the proceeds to his siblings, he decided instead to continue managing the property through the estate. According to court records, during this time he “did not communicate with his sister [], failed to file an accounting, failed to cooperate with or contact his attorney, and evaded service of citations to appear in court.” Seven years after his father’s death, the probate court suspended the son as administrator.