San Diego Estate Planning Lawyer Blog

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 12, 2016

Can Your Children Handle an Inheritance?

by Scott C. Soady

A family business presents unique estate planning challenges. You may want your children to share equally in your overall estate, but at the same time, your children may not be equally capable or invested in your business. It is also important to make sure any child you groom to take over a family is business is capable of doing so. Failure to properly plan in this area can lead to a number of legal problems after your death.

Son Convicted of Stealing Assets From Father’s Estate

Sometimes those legal problems may even include criminal prosecution. Recently a San Diego appeals court upheld the criminal conviction of a man accused of stealing from his late father’s estate. Although this is case is not binding precedent, it does illustrate the types of problems that can arise when there is a lack of proper estate planning.

Published on: February 6, 2016

How a California Power of Attorney Works

by Scott C. Soady

A power of attorney is a document authorizing someone to act on your behalf with respect to financial and contractual matters. Among other acts, a person holding your power of attorney may sell your house, write checks from your bank account, or access your safe deposit box. A power of attorney is “durable,” meaning it continues in effect until you revoke it. Your death would also terminate any outstanding power of attorney.

Daughter Improperly Delegates Father’s Power of Attorney

There are limits to what a person may do under a power of attorney. Here is one illustration from a recent California appeals court decision. This is only an example and should not be construed as a complete statement of California law on the subject of powers of attorney.

Published on: February 5, 2016

How the Estate Tax Will Work in 2016

by Scott C. Soady

The new year is a good opportunity to reconsider your estate planning needs. You should periodically review, and if necessary revise, your will, trust, and other estate planning documents such as a durable power of attorney, to keep your affairs current. Among other things, changes in the law may alter your estate planning needs.

What is the Estate Tax?

One of the most important laws affecting estate planning is the estate tax. This is a federal tax levied against the total value of a person’s assets upon their death. A handful of states also levy their own estate tax, although California does not. However, if you own property in a state where such a tax is still assessed, you will need to account for that in your estate planning.

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: February 2, 2016

How Do You “Prove” a Will is Valid?

by Scott C. Soady

After your death, your will provides an estate planning roadmap for distributing your property to your chosen beneficiaries. You may be wondering how a probate court will know whether or not a particular document is actually your will. In other words, how does one go about proving a will is valid?

California, like all states, requires a will to be signed in the presence of at least two witnesses. The reason for this is to maximize the chance that at least one person—one of the witnesses—will be available to authenticate the will as valid should a dispute arise. Of course, since you may sign your will years (or decades) before your death, what happens if the witnesses are difficult to locate or unavailable?

One solution is to incorporate a “self-proving affidavit” into the will. This is a notarized document signed by the person making the will, together with the witnesses, in which they all affirm, under penalty of perjury, that the accompanying will is genuine. Most states will accept such an affidavit as proof of a will’s validity without the need for live witness testimony.

Published on: January 30, 2016

What Happens to My Estate Plan if My Child Dies Before Me?

by Scott C. Soady

No parent wants to contemplate losing a child. But from an estate planning perspective, you should anticipate how you wish to handle your own affairs in the event a child does not outlive you. Addressing these contingencies up front can help avoid misunderstandings after your death as to your wishes.

Per Stirpes Distribution

For example, suppose you are currently married and have three children. You sign a will that provides if you die and your spouse does not survive you, then your entire estate should be divided equally among your three children. Assuming all of your children are alive at the time of your death, it should be a relatively straightforward matter for the executor of your estate to gather your assets and divide them into three equal shares, one for each child.

Published on: January 29, 2016

How Language in a Will Can Affect the Distribution of an Estate

by Scott C. Soady

Clarity is important when drafting a last will and testament. Your executor must be able to understand your intentions with respect to the disposition of your estate. Likewise, the beneficiaries named in your will have a right to know what they are entitled to. When imprecise terminology is employed, it may lead to confusion, which in turn can lead to litigation.

Wife Ordered to Honor Husband’s Charitable Gifts

Here is a recent example from here in California. This case is only an illustration and not a definitive statement of the law. The deceased in this case made a last will and testament several months before his death in late 2010. The will named the decedent’s second wife as executor and directed she would receive the residue of his estate, including mutual funds, checking accounts, stocks, and so forth. The will also made gifts of “up to” certain specified amounts to the decedent’s first wife and various charitable organizations. For example, the will directed the executor to “leave up to $150,000 from the proceeds from my mutual funds, stocks, cash, and bonds to the [U]niversity of [C]olorado [S]chool of [B]usiness in [B]oulder.”