San Diego Estate Planning Lawyer Blog

Published on: August 4, 2015

California Supreme Court Says Judges May Consider Outside Evidence to Correct “Mistakes” in Wills

A last will and testament is supposed to express your wishes regarding the disposition of your estate. But sometimes a will is not clear about a testator’s wishes. If there is ambiguity in the language of a will, a California probate court may look to “extrinsic” evidence-facts or information outside the text of the will itself-in determining what the testator really meant.

That said, a court should not rewrite a person’s will to mean something it doesn’t actually say. For that reason, the California Supreme Court held in 1965 probate judges may not consider extrinsic evidence when interpreting an unambiguous will. In that case, Estate of Barnes, the testator’s will provided for the distribution of her estate to her husband, but he predeceased her. The will made no provision for such a scenario, and the Supreme Court said the probate court could not consider extrinsic evidence to ascertain the testator’s intent.

The Supreme Court Alters Course

Published on: June 26, 2015

Is a Promise to Leave Your Estate to Someone Legally Enforceable?

by Scott C. Soady

A probate court in New York recently addressed an unusual will contest. An 82-year-old Roman Catholic nun died in 2012, leaving a surprisingly large estate worth over $2 million, the product of a 1982 personal injury settlement. The sister signed a will in 1994 dividing her estate among her siblings, her congregation and various other Catholic charities.

The congregation actually contested the will. When the sister entered the congregation back in 1959, she signed a declaration agreeing to abide by the order’s requirements, which included a “vow of poverty.” To that end, the sister signed a will in 1979 leaving her entire estate to the congregation. This will, of course, predated the 1982 personal injury settlement and the subsequent 1994 will which, if valid, revoked the 1979 document.

Among other arguments, the congregation maintained admitting the 1994 will constituted a breach of contract, as it violated the sister’s 1959 vow of poverty. In June 2015, a New York probate judge denied the congregation’s motion for summary judgment on this issue. Without addressing the underlying breach of contract claim, the judge held under New York law, the purported 1959 contract did not affect the admissibility of the 1994 will.

Published on: June 25, 2015

Dealing With Break Ups in Your Estate Plan

by Scott C. Soady

Estate planning is often a snapshot of your life at a particular moment. The beneficiaries or agents named in your will and other estate planning documents reflects your relationships at that point in time. And as those relationships change, so should your estate planning.

Say you draft a will and name your best friend as executor. If you later have a falling out with her, it is probably a good idea to revise your will and name a new executor. Or suppose you leave a relative a large inheritance in your will. If you later learn that relative is irresponsible with money, you might decide it prudent to revoke your gift.

How Divorce Affects A Previously Signed Will

Published on: June 17, 2015

Distinguishing Marital and Separate Assets in Estate Planning

by Scott C. Soady

In making an estate plan, it is important to make a complete list of all assets you own. This is especially helpful to your future executor or trustee, who will be responsible for marshaling your assets after your death and distributing them as you direct. Confusion over the ownership of assets can lead to litigation, as this recent California case illustrates.

Estate of Quon

A married couple had three children. In 1968, the father purchased a 5% interest in a company whose sole asset is an apartment complex in Glendale, California. The company’s majority owner previously worked as the couple’s accountant. In 1972, the majority owner issued formal stock certificates to the husband alone, who made all the financial decisions for the couple.

Published on: June 15, 2015

Should I Write My Own Will?

by Scott C. Soady

A will is a formal document. California law requires a will be typewritten and signed by two competent witnesses. There are exceptions to this rule, but it is generally a bad idea to try and take advantage of them. A recent case from Arizona illustrates the potential pitfalls of trying to prepare your own will without the help of a qualified estate planning attorney.

Court Case in California

An Arizona woman died in 2012. The previous year, she began drafting a last will and testament on her computer. One of the beneficiaries named in the draft will was the woman’s natural granddaughter. The use of “natural” here is significant, because the granddaughter was actually adopted after her birth mother-the woman’s daughter-passed away. Grandmother and granddaughter later met and formed a close relationship.

Published on: June 13, 2015

Can My Creditors Control My Estate?

by Scott C. Soady

Estate planning includes not just how to dispose of your assets, but also how to deal with any creditors you may still owe money to after your death. This includes lawsuits which may be pending or occur as a result of your death. In some cases, even if you leave no assets as part of your probate estate, an estate must still be opened in order to address such litigation.

Estate of DeMotto

Here is a recent example which is discussed only as an illustration and should not be taken as a correct statement of the law. A man died in 2013. The man was living with a woman-not his wife-at the time of his death. Their relationship began in 2001. Although the woman claimed he intended to provide for her in his estate planning, he did not name her as a beneficiary of his will or trust.

Published on: June 12, 2015

Can One Estate Inherit from Another Estate?

by Scott C. Soady

One thing to consider when making a will or other estate planning arrangements is how your actions (or inactions) may affect other people’s estates. Consider a recent story from North Dakota. A Fargo dentist died after another man brutally attacked him with a hammer. It turned out the dentist’s father-in-law hired the killer. Both men were convicted of murder and sentenced to life in prison.

Local prosecutors said the father-in-law wanted to obtain custody of his three-year-old granddaughter. Several months before the murder, the dentist’s wife passed away. The dentist himself did not leave a will. Like California, in cases of intestacy North Dakota law requires dividing the deceased’s estate equally among his three surviving children. Yet nearly six years after his death, the estate remained open before a North Dakota probate court.

Why the unusually long delay? According to a local newspaper, the executor of the estate was still waiting to receive an inheritance from another estate, that of the deceased dentist’s father, who died before his son. The father’s estate remained pending before a probate court in Louisiana. The news reports did not elaborate on the reasons for the delay in the administration of the Louisiana estate.

Published on: May 14, 2015

Showing Proper Respect for Death Certificates

by Scott C. Soady

Gov. Jerry Brown signed into law the “Respect After Death Act.” This law requires persons completing a death certificate to report the deceased person’s correct “gender identity.” The law, sponsored by California Assembly Speaker Toni G. Atkins, is designed to clarify the responsibilities of coroners and funeral directors on this subject.

As of January 1, 2015, the new law will require the person preparing a death certificate in California to “record the decedent’s sex to reflect the decedent’s gender identity.” The person reporting the death is responsible for informing the person completing the certificate of the deceased individual’s gender identity, unless presented with another official document, such as a birth certificate or driver’s license, indicating a different gender identity. In such cases, the death certificate must reflect what is on the official document. If there is any disagreement between the official documentation or what the person reporting the death considers the deceased’s gender identity, a “majority of persons” having the legal right to dispose of the person’s remains shall decide the matter.

According to media reports, the Respect After Death Act was prompted by the 2012 death of Christopher Lee, a San Francisco filmmaker who was born female but identified as a male. His death certificate reported his gender as “female,” despite the fact his family provided official documentation noting his gender identity as male. The local coroner said existing law required identification of Lee as female unless he had gender reassignment surgery. Under the new law, that is not necessary.

Published on: May 12, 2015

Understanding Advance Health Care Directives and “Living Wills”

by Scott C. Soady

You often hear the term “living will” used to describe a document outlining a person’s wishes in the event they become incapacitated or are otherwise unable to communicate with medical personnel. Actually, a living will is not a will at all. A will-i.e., a last will and testament-is a document that only takes effect after your death and relates to the disposition of your property.

In California, when we speak about a “living will,” we actually refer to one part of a document known as an advance health care directive. A health care directive performs multiple functions. First, it allows you to designate a person to make health care decisions for you if you become incapacitated. This person or agent would then hold your power of attorney for health care purposes only; he or she would not have control over your property or financial affairs unless you sign a separate power of attorney for that purpose.

The second part of the advance directive is what is commonly known as the living will. This part allows you to provide instructions regarding your care. For example, you might instruct your doctors not to prolong your life through artificial means should you fall into a coma. You may also specify whether you want to receive medication to ease your pain even if it might hasten your death.

Published on: April 10, 2015

“Undue Influence” Can Undo Your Estate Planning Intentions

by Scott C. Soady

Your deathbed is not the right place to make a will or begin the estate planning process. Individuals who are hospitalized or dying are often subject to the undue influence of others. California courts may invalidate a will or other estate planning document if there is substantial evidence of such undue influence.

In Re Estate of Slocum

Here is a recent example of undue influence from a California Court of Appeal decision. This case is discussed for informational purposes only and should not be treated as legal advice.