WILLS

Published on: September 22, 2011

Disinheriting a Child or Heir in a Will or Trust

The decision to disinherit a child can be very difficult for some people. Other people just want to give less to one child and more to another. There are usually valid reasons behind the decision and it is not one people take lightly. Most clients I see are reluctant to share their reasoning behind their decision. They think, correctly, that “they can leave money in their will or trust to whomever they wish.” However, it is very important to discuss your reasoning with your attorney. Once you pass away your estate planning attorney is in the best position to testify about the language and intent of your estate plan.

You intent is crucial to determine the validity of your will and trust if it is ever contested. Many people think, incorrectly, that a will or a trust cannot be challenged. However, any estate planning document can be challenged by a disinherited heir on two grounds. The first is undue influence, meaning that the person who benefited from the will or trust exerted too much influence over the person leaving them an inheritance. The only other ground is lack of capacity meaning that the person making the will or trust did not understand what they were doing when they executed their estate plan.

There are a few ways to prevent a contest of an estate plan. One is to have a ‘no-contest clause’, sometimes referred to as an ‘in terrorem clause’ in the will and trust. Basically this states anyone contesting the terms of the estate plan gets nothing. The other popular phrasing is the person contesting gets one dollar. The problem is these clauses only work if you give the person you are disinheriting something in the first place. I always advise clients who want to disinherit children completely to leave them some amount of money so that a disinheritance clause will work. The purpose of the clause is to take an emotional decision about being disinherited and making it an economic decision.

Published on: August 2, 2011

2010 New York Times Article: Getting a Will: Six Common Questions

by Scott C. Soady

The New York Times has many articles on estate planning. An article from 2010 is still very relevant and discussed six common questions regarding wills: do you need a will; can you do it yourself; do you need more than a will; what about a revocable living trust; how else can probate be avoided and where do you keep your will. Estate planning is a complicated area of the law and each estate plan needs to be tailored to your individual assets and requests for distribution of your estate.

All need a will. Without a will, the State will determine the disposition of your property. No one wants this and all would like to have their property go to who they want and not who the State determineds. A will can be done by yourself but this is not advisable for many reasons. A revocable living trust is designed to avoide probate and keep your estate private. Probate can also be avoided with strategies on certain assets such as life insurance polices. You should keep your will in a fireproof box and/or safe deposit box and make sure your executor knows where the will is kept.
Continue reading

Published on: July 28, 2011

How To Choose An Executor: 2011 New York Times Article

by Scott C. Soady

Choosing an executor for your estate can be one of the most challenging decisions in the creation of drafting your will. An executor will administor your estate and continue to do so until the estate is closed. A will should be part of an estate plan and not “stand alone”. If a will is part of a revocable living trust, then probate and the costs and time involved to administer the estate may be much less in both money and the period of time.

An article in the New York Times in 2011, discusses the qualities for an executor. According to the article, an executor can be a family or non family members. There are advantages and disadvantages to both strategies. In addition, an executor should be honest, well organized and able to work with the family members. The litmus test used by an attorney quoted in the articles is whether the executor files his/her income taxes every year on a timely basis. Clearly, this is one of the most important decisions you can make.
Continue reading

Published on: June 21, 2011

Holographic Wills: Proof Required: San Diego Superior Court

by Scott C. Soady

In the San Diego Superior Court, a holographic will may be introduced in a Probate proceeding. A will can take many forms including holographic. A holographic will can be defined as a will which is hand written.

In California, the law will allow a holographic will under certain conditions. This is very complicated and an attorney should be consulted. In San Diego, California, for a holographic will be be valid and according to proof and all sections of the will which are necessary for validity must be entirely written by hand. The person writing the will must sign in hand writing. The will cannot be ambiguous and must have all of the mandatory language.

In California, in addition, there is a form for proof of a holographic instrument. The declarant has to state how many years they knew the decdent, their knowledge {must be personal} of the handwriting of the decedent and that the holographic will and its handwritten provisions were written and signed by the hand of the declarant. If this cannot be proved in this way, then a handwriting examiner may be required.
Continue reading

Published on: June 7, 2011

2011: Pour Over Will

by Scott C. Soady

A pour over will is one of the documents normally contained in a revocable living trust. The purpose of including a pour over will is to try and avoid probate court and litigation of the asset. If your pour over will, or revocable living trust, is more than five years old, it is prudent to have reviewed to make sure all of the content is current and up to date. Laws in San Diego, California change and a restatement of the trust, or a new trust with a new pour over will, may need to be prepared.

A pour over will’s purpose is to transfer any assets which are not included in a revocable living trust into the trust. If achieved, then this can avoid probate of the estate. If not, then the disposition of these assets can be the subject of a probate. There are many requirements for a pour over will. If all of the requirements are not met, then the pour over will may fail. There is also a will included in the revocable living trust for assets in the name of the trust.

A pour over will is very important since, many times, not all of the assets are in the revocable living trust at the time of death. In many cases, assets are purchased or acquired after the date of the preparation of the revocable living trust such as houses, cars, bank accounts or others. If these are not included as assets in the revocable living trust, then the pour over will attempts to transfer into the trust. The best procedure is to include any assets acquired after the trust is completed in the trust.
Continue reading

Published on: December 27, 2010

The Will Debuts on the Discovery Channel

by Scott C. Soady

A new series on the Discovery Channel is called The Will: Family Secrets Revealed. It is an eight part series on the wills (or lack thereof) of various people depicting the drama of some families after a death in the family. Throughout the series, each one hour episode will show the most curious and contentious real life stories of what happened after a loved one’s death, complete with conspiracy, mystery, tension, and turmoil.

Coming up are segments about the Estate of Doris Duke who left her butler an estate worth 1.2 billion, the estate of Kitty Tipton Oakes who died without a will, and the estate of actress Joan Crawford who left nothing to her two children who you may recall wrote the book Mommy Dearest.

Interesting viewing which highlights the importance of estate planning. Many of these stories involve people who either wrote no will or wrote one that was later challenged. There are right ways and wrong ways to disinherit beneficiaries and techniques to minimize possible litigation after your death. Contact us at Law Office of Scott C. Soady, A Professional Corporation to discuss creating an estate plan which will fulfill your goals and minimize any drama after your death.

Published on: November 27, 2010

5 Wacky Wills

by Scott C. Soady

From time to time it is fun to look back on what are some of the strangest bequests people have put in their estate planning documents.

1. An eccentric lawyer named Charles Vance Miller, a resident of Canada, was noted for his practical jokes. He left a large sum of money from his estate to the woman who could produce the most children in the ten year period after his death. The contest which became known as the Great Stork Derby resulted in 4 women each receiving $125,000 (Canadian money) for each bearing 9 children.

2. Harold West thought he might become a vampire after his death in 1972 so he left instructions in his will that his doctor drive a stake into his heart just to be sure he was properly dead. Who knows if the doctor carried out his wishes.

Published on: August 31, 2010

Why Does Probate Take So Long?

by Scott C. Soady

In California probate proceedings are governed by the Probate Code which sets forth certain time limits. Once a petition for probate is filed, you will receive a date for the first hearing in which an administrator or executor is appointed. The hearing is often 2-3 months after the petition has been filed. Once the representative has been appointed, notice has to be given to creditors of the decedent. Creditors have four months after publication of the notice of probate or 60 days after receiving actual notice, whichever is later to file a claim. Then the process begins of collecting and valuing all of the decedent’s asset, paying the debts, taxes, possibly liquidating some assets, and finally distributed the assets to the heirs or beneficiaries.

The normal time for probate in San Diego county is between 9 months and 18 months. There are a number of factors that may make the probate process take longer. Some of these are:

1. Many beneficiaries

Published on: May 31, 2010

Have You Ever Heard of an Ethical Will?

by Scott C. Soady

At Scott C. Soady, A Professional Corporation, we encourage families or individuals to create an estate plan, consisting of a will or a revocable living trust so your loved ones know how you want your assets distributed. An interesting off shoot from traditional estate planning is an ethical will. Have you ever heard of one?

An ethical will (also called a “legacy letter”) is a document designed to pass ethical values or life lessons from one generation to the next. They have been around for centuries and come from the Judeo-Christian tradition. Rabbis and Jewish laypeople wrote ethical wills during the 19th and 20th centuries.

Today, Dr. Andrew Weil, a noted author and doctor of integrative medicine who has written books on health and aging, promotes ethical wills as a gift of spiritual health to your family. Leaving such a document explains to your loved ones their family and cultural background, ethical and spiritual values, life lessons and experiences, and your hopes for future generations.They are becoming more prevalent. Even President Obama has written a legacy letter to his daughters.

Published on: May 11, 2010

Is There a Will or a Trust? How Hard Should We Look?

by Scott C. Soady

When a person dies in San Diego, the Probate Court will determine to whom the assets of the decedent will be distributed based on the laws of “intestate” succession. “Intestate” means that the decedent died without a will or a trust. Before you decide to file a probate proceeding without a will, make sure that it is indeed the case that no will or trust can be found. It can make a difference.

Look for a will or a trust in the decedent’s home and business files, safety deposit box, or safe. Ask other family members if they recall the decedent mentioning that he or she executed a will or a trust. Find out if the decedent had a family lawyer who may have drafted an estate plan or referred the decedent to an estate planning lawyer. Often estate planning attorneys will keep the originals of clients’ estate plans in their fire proof safes. Look through the decedent’s collection of business cards to see if a lawyer is among them.

If no will or trust can be found, the steps in the probate process will be the same as for a probate with a will. The difference is in the distribution of the assets. A couple of examples will illustrate the difference: