WILLS

Published on: October 4, 2013

“She’s Just Like a Daughter to Me!” But Is That How a Probate Court Will See It?

Under California probate law, adopted children are treated no differently than biological children. So, for example, if a person dies without a will, his adopted and natural children are afforded the same status as heirs under California’s intestacy law. But that presumes the adopted children are, in fact, adopted in accordance with the law of California or another jurisdiction. What about children who are informally-i.e., not legally-adopted?

Many common law jurisdictions recognize “equitable adoption.” This means that if a person fulfills the role of a child, and the “parent” reciprocates, the courts may recognize a contractual relationship exists for the purposes of establishing intestate succession. As recognized by California courts, equitable adoption establishes the child’s right to receive property from the parent if he or she dies without a will.

It’s important to note that equitable adoption has no affect on estates where there is a valid will. Nor does it affect trusts. The only application of equitable adoption is to estates subject to intestacy law.

Published on: September 17, 2013

Court Considers Challenge to Reclusive Heiress’ Will

by Scott C. Soady

A New York City jury may soon determine the fate of an estate valued at over $300 million. The deceased, Huguette Clark, left a last will and testament, but her relatives have contested the document as fraudulent. At least 19 distant relatives-most of whom never even met Clark-could share in the estate if the New York County Surrogate’s Court determines her will is invalid. Recent news reports indicate the estate may settle with the would-be heirs to avoid a trial.

Clark died in May 2011 at the age of 104. Clark’s father, a former U.S. senator from Montana, left her an immense inheritance from his copper mining fortune. Huguette Clark’s estate included mansions in Santa Barbara and Connecticut as well as a 10,000 square-foot apartment in Manhattan. But Clark herself was rarely seen by anyone. A 2012 report by MSNBC documented Clark’s isolation and the mystery surrounding her final years.

Clark’s distant relatives long believed she was under the undue influence of her financial advisors, particularly her attorney. Clark’s last will and testament, dated 2009, left the bulk of her estate, including her California property, to a private foundation established under the will. Clark also left over $15 million to her longtime nurse, and made gifts to her attorney and other employees, but left nothing to any of her distant relatives. Before her death, Clark made gifts totaling more than $44 million to her nurse, attorney and others; the executor of Clark’s will now contends those gifts were coerced and has asked the court to order repayment of all funds back to the estate.

Published on: August 30, 2013

Prosecutors Allege Will Forgeries Led to Fraud Against Estates

by Scott C. Soady

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 15, 2013

Succession Planning for Your One-Person Business

by Scott C. Soady

Estate planning for your personal assets, such as your home, can be relatively straightforward. But estate planning for your business assets-sometimes called succession planning-presents unique challenges. The first step in succession planning is understanding the legal structure of your business and how it may interact with the probate system after your death.

Sole Proprietor

In a sole proprietorship, there is no legal or tax distinction between you and your business. In a sense, when you die, the business dies with you, and your estate may still be responsible for any business-related debts just as it would be for personal debts. Any business assets are disposed of in your will, or if you don’t make a will, according to California’s intestacy law.

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 22, 2013

Utah Woman’s Disappearance Highlights Importance of Estate Planning

by Scott C. Soady

Susan Cox Powell disappeared in December 2009. The former West Valley City, Utah, mother of two was last seen attending church with her family. Police and West Valley City residents long suspected Powell’s husband was responsible for her disappearance (and presumed death). Tragically, the husband killed himself and his children by exploding his home in Washington State in 2012. Another suspect, the husband’s brother, killed himself this past February. On May 21, West Valley City police formally closed its investigation into Powell’s death, citing a lack of evidence and living suspects.

Police disclosed several hundred pages of documents related to the Powell investigation, including a handwritten four-page note labeled “Last Will & Testament for Susan M. Powell.” The document was not a traditional will. It made no distribution of Powell’s property or affairs, aside from a request that her parents be “very involved & in charge of” her children’s lives. Mostly, Powell’s will is a statement for the benefit of police regarding her decaying marriage and the fear that her husband might try to kill her. “If I die,” Powell wrote, “it may not be an accident, even if it looks like one.”

Are Handwritten Wills Valid (or Advisable)?

Published on: July 19, 2013

How Making an Estate Plan Can Prove Your Mental Competency

by Scott C. Soady

The purpose of estate planning is to prepare for a time when you can no longer make decisions for yourself, either because of death or incapacity. And while ascertaining a person’s death is usually a straightforward task, determining incapacity-more precisely, the lack of capacity to make certain types of decisions-is often complicated. California law establishes varying competency thresholds for different legal decisions, as illustrated by a recent decision from a state court of appeals panel in Santa Ana. This case is only used for illustrative purpose and cannot be relied on as a statement of the law.

The case itself involved divorce, not estate planning. Lyle B. Greenway wanted to end his 48-year marriage to Joann Greenway. In 2009, Lyle Greenway moved out of his marital home and into a retirement community. The following year, he filed a petition for legal separation, citing irreconcilable differences with his wife. Joann Greenway opposed the petition.

Lyle Greenway was recovering from an operation and convalescing in a nursing home in mid-2010. Because of this, the couple agreed to have their case heard by Thomas J. Murphy, a former San Diego County Superior Court judge who now works for JARS, an alternative dispute resolution company. Judge Murphy performed essentially the same function as a trial court in this case.

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: February 13, 2013

Ensuring Your Will Is Properly Witnessed

by Scott C. Soady

When you make a Last Will and Testament, California law normally requires you sign it in the presence of at least two witnesses, who must also sign the will. It’s not necessary for the witnesses to read the will or understand its contents, only that you declare the document that you are signing to be your Last Will and Testament. A will that is not properly witnesses may be contested or challenged in court by your heirs.

But that’s not to say that a court will simply throw out your will if there aren’t two witnesses. Just recently a California appeals court considered a case where a will had only one witness. The deceased, Norminel Reese, had previously given his estate planning lawyer handwritten instructions on how he wished to dispose of his assets after his death. The attorney prepared a will that was then signed by Reese in the presence of a single witness, his girlfriend at the time. She was not a beneficiary under the will.

A Contested Will Divides Siblings

Published on: February 5, 2013

The Rivera Estate & Holographic Wills in California

by Scott C. Soady

Jenni Rivera was not a household name in most parts of the United States. But the singer, writer, and Telumundo star was known to almost everyone in Mexico. Had things gone differently, she may have gained a following in the United States as well, because she was set to appear in a new ABC television show. Tragically, it was not meant to be, as Rivera died in early December in a Mexican plane crash.

Rivera was only 43 years old at the time of her death, leaving behind five children–the oldest of whom was 28 years old. As a result of her success in the entertainment industry, it is reported that she left behind an estate valued at nearly $25 million.

No Planning?