WILLS

Published on: July 18, 2014

How to Self-Prove a Will

A last will and testament is a legal document that must be filed with a probate court after your death. California law normally requires a will must be signed by the maker (testator) and at least two other persons as witnesses. The witnesses need not read or understand the contents of the will, but they must witness the testator’s signature and his declaration that the document is, in fact, intended to serve as a last will and testament.

In most cases, the witnesses play no further role once they have signed the testator’s will. But if a dispute emerges after the testator’s death, a probate judge may require one or all of the witnesses to testify as to the authenticity of the will. Since it may be difficult to locate witnesses what may be years after the fact, California and most states permit what are known as “self-proving” wills. A self-proving will includes an affidavit-that is, a declaration witnessed by a Notary Public-attesting to the authenticity of the document. In other words, the affidavit “proves” the will is authentic without the need to locate and produce the witnesses.

Dealing With Deceased Witnesses

Published on: July 16, 2014

What Is a “Small Estate”?

by Scott C. Soady

Not every estate requires a formal probate process. Most states, including California, have simplified procedures for administering “small” estates. The actual definition of a small estate varies from state to state. California law defines a small estate as one where the real and personal property owned by the deceased, valued as of the date of death, does not exceed $150,000. Some types of property are excluded from this $150,000 threshold, including unpaid salary or benefits owed the deceased (up to $15,000) and many types of vehicles.

In a regular estate, a probate court must appoint a personal representative or executor to gather the decedent’s assets and distribute them to the appropriate heirs or beneficiaries. In a small estate, by contrast, the person entitled to receive those assets may simply file an affidavit with the court acknowledging the transfer of ownership. There are separate processes for collecting personal and real property.

If the Small Estate Includes Only Personal Property

Published on: July 14, 2014

Does Your Will Contradict Your Prenuptial Agreement?

by Scott C. Soady

A last will and testament is just one document that may govern the disposition of property after your death. Many married couples sign a prenuptial (or antenuptial) agreement that can also affect estate planning. For example, spouses may agree to waive any future claim on each other’s estate. This may be useful in cases where a spouse wants to leave part of his or her estate to children from a prior marriage.

But if documents are poorly or incompletely drafted, legal confusion may frustrate your objectives. A recent decision by an appeals court in Mississippi illustrates what can go wrong when a will says one thing, but other documents say something else.

Dixon v. Jones

Published on: May 22, 2014

Failing to Leave a Will Can Cause Confusion Among (Alleged) Heirs

by Scott C. Soady

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.

Published on: May 18, 2014

Florida Justices Warn of the Dangers of Estate Planning Without an Attorney

by Scott C. Soady

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.

Published on: May 16, 2014

Disposing of a Sole Proprietorship in Your Will

by Scott C. Soady

An often overlooked part of estate planning is business succession. If you own and operate your own business, it is essential your estate plan make provisions to either wind-up the business upon your death or transfer those assets to a designated successor. This is especially true if your business is not incorporated-that is, you operate a sole proprietorship or even a one-member limited liability company.

Separating Business and Personal Assets

A recent case from the Georgia Supreme Court is instructive. Robert Haege died in 2006. Haege operated an art business under the name Traditional Fine Art, Ltd. In his will, Haege left his “personal assets” to his siblings and his “business assets” to his siblings and two of his employees.

Published on: May 2, 2014

The Importance of Separating “Separate” and “Community” Property

by Scott C. Soady

California estate planning must take into account the state’s community property laws. California is one of nine states that recognize community property, which is a legal system that governs property held by married couples. In general, each spouse enters the marriage with their separate property. Property subsequently acquired during the marriage is community property, with each spouse retaining a one-half interest. Upon a spouse’s death, his or her estate plan may only dispose of that one-half interest.

In making a will or trust, it is therefore essential to distinguish separate and community property. If you intend to make provisions for one or the either, you should do so explicitly. Ambiguity may lead to litigation between your heirs, as one recent decision from the California Court of Appeals illustrates. This case is cited only for illustrative purposes and is not meant to be taken as a statement of the law.

Pakula v. Klein

Published on: April 11, 2014

Never Wait Until the Last Minute to Make a Will

by Scott C. Soady

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.

Published on: April 9, 2014

Family Heirlooms Can Lead to Family Litigation

by Scott C. Soady

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.

Published on: March 27, 2014

$4.2 Million Judgment, Lack of Proper Probate Lead to Family Feud

by Scott C. Soady

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