Articles Posted in PROBATE

Many people fail to make a last will and testament because they simply assume their heirs, such as a spouse or child, automatically inherit their property under the law. While it is true the law provides for persons who die intestate-that is, without a will-it is never a good idea to rely on this process, as it may produce outcomes you do not intend. This is especially true when dealing with atypical family situations.

Jones v. Brown

Here is a recent illustration from the California Court of Appeals. Lonza Jones died in 2009 at the age of 81. Jones had one surviving sibling, Mathis Jones. Another sibling died several decades earlier; Lonza Jones raised that sibling’s children, including Elinda G. Edwards.

Many people think they will save time and expense by using pre-printed forms to meet their legal needs such as a last will and testament. But pre-printed forms carry significant risks, especially when individuals fill them out without obtaining the advice of an experienced California estate planning attorney. In fact, the Florida Supreme Court recently warned people of the risks of using pre-printed wills in a decision that illustrates the perils of relying on commercial forms.

Basile v. Aldrich

In April 2004, Ann Aldrich purchased a commercial pre-printed last will and testament form. She prepared the form herself, apparently without any legal advice. Under a section marked “Bequests,” Aldrich identified several specific items of real and personal property. She left all of the listed property to her sister, Mary Jane Eaton. Aldrich named her brother, James Aldrich, as alternate beneficiary of those particular assets if her sister did not survive her. Aldrich apparently had no children or heirs aside from her two siblings.

Ideally, estate planning is something you do long before it becomes necessary. It is never a good idea to wait until you are on your deathbed to make a will. You may run out of time before you can execute a will that meets with the legal requirements of California or another state where you reside.

Piper v. Dimmers

A recent Michigan case illustrates the perils of last-minute or incomplete estate planning. Grace Reid died in 2011 at the age of 69. Reid was unmarried and had no children. Absent a will, Michigan law would distribute her estate-which consisted primarily of some land-to her siblings. After she was diagnosed with heart disease, Reid met with an estate planning attorney to discuss her will. For some reason, she never followed up with the attorney prior to her death.

We often read stories about heirs fighting over a deceased relative’s multimillion-dollar fortune. But some estate disputes arise over seemingly trivial matters. The common thread in many of these disputes is insufficient direction from the deceased person’s estate plan.

A One Hundred Dollar Case

Recently, the Supreme Judicial Court of Maine had to settle an argument between relatives over the possession of a single item valued at just $100. The deceased was Ada Greenblatt, a Maine realtor with no children, but two surviving siblings and several dozen nieces and nephews. Upon Greenblatt’s death in 2008, her will made several specific gifts and left the remainder of her estate to her siblings in equal shares. If any sibling died before her, that share would be divided among his or her children.

Court judgments are an asset that must not be overlooked as part of your estate planning. For example, if you are receiving the proceeds of a personal injury lawsuit, that is an asset you must factor in to your will or trust. Similarly, if any litigation is pending at the time of your death, your executor becomes your legal successor in continuing the lawsuit. Therefore, it’s imperative you leave a will and name an executor, rather than leaving such decisions up to a probate court.

Unfortunately, large personal injury awards can breed further discord among relatives seeking a piece of the pie. This was evident in a recent California appeals court decision. The case, which is discussed here solely for informational purposes, nevertheless highlights the importance of estate planning as it relates to managing court judgments.

Kitchen v. Foxford

Many people do not bother to create a will because they don’t have much property. Why go to the trouble and expense when you own so little? But a will-and estate planning in general-isn’t just about what you own today, but what you might own in the future, and failing to leave a will can lead to legal complications, even years after your death. That’s especially true when your heirs discover property interests that were not obvious at the time of your death.

Estate of Huston v. Huston

A recent case from North Dakota illustrates the problems associated with not making a proper will. The case involved a Wyoming man, Virgil Huston, who died 14 years earlier. Huston’s heirs included his wife, Wilma Russell, and three adult children from a prior marriage. At the time of his death in 2000, the family believed Huston owned nothing except a car worth about $200. Not surprisingly, he left no will.

It’s common for spouses to execute a joint estate plan, signing their respective wills at the same time under the advice of the same estate planning attorney. What’s uncommon is when the spouses inadvertently sign each other’s wills. While it may sound ridiculous that such an error would go unnoticed, just such a situation occurred in the United Kingdom-and it required a decision by that country’s Supreme Court to correct the mistake.

Marley v. Rawlings

Alfred and Maureen Rawlings made their wills in 1999. They hired a solicitor-an English lawyer who specializes in estate planning-to prepare the documents. The wills were not complicated. Each spouse left his estate to the other, and if the other spouse was already dead, the estate would pass to Terry Marley, a family friend. The Rawlings had two children but, for whatever reason, they chose not to include them in their estate plan.

A last will and testament is an important legal document. It is not something that should be drafted or signed without careful consideration. And once a will is signed, it’s essential to keep the original in a safe place where it may be located after the person’s death.

As a matter of law, an executor must file a signed, complete, and original version of a purported last will and testament. In many cases, an estate planning attorney will have a client sign duplicate originals. While a photocopy of a will has been admitted to probate in some cases, it is never advisable or ideal. California law presumes that a missing will is presumed revoked, assuming it was last in possession of the person who made it. This is only a presumption that can be overcome by additional evidence, such as a photocopy, but again this is neither advisable nor ideal, especially in cases where a will is contested by one or more parties.

In re Estate of Dixon