San Diego Estate Planning Lawyer Blog

Published on: September 19, 2014

Making Your Intentions Clear in a Will

A successful estate plan makes the final distribution of a person’s property plain and clear. Ambiguity in a will or trust may lead to costly litigation over conflicting interpretations of a person’s intent. But even the best executed estate plan may still leave some unhappy heirs, as one recent California Court of Appeals decision illustrates.

The Case of the Lanfermans

The deceased in this case was Paul Lanferman, who died in 2011. Lanferman and his wife, Susan Lanferman, executed an estate plan nearly two decades earlier. The Lanfermans had a total of six children, all from prior marriages. The Lanfermans executed identical wills. As applicable here, Paul Lanferman’s will said upon his death that his one-half interest in any community property would go to his wife. The will attached no conditions to the gift, aside from an instruction to the executor, which stated that the couple’s home could not be sold during Susan Lanferman’s lifetime without her consent.

Published on: September 18, 2014

Naming Backup Beneficiaries In Your Will or Trust

by Scott C. Soady

In creating a will or trust, a person may make specific bequests of property to a chosen beneficiary. But what happens if that beneficiary does not survive the person making the bequest? A well-drafted will or trust must anticipate such contingencies. Either the document should name an alternate beneficiary, or it should be made clear that the gift lapses and passes as part of the person’s residuary (leftover) estate.

A recent California Court of Appeals decision illustrates the confusion that may arise when the intended beneficiary of a gift dies before the giver. This case is only provided as an example and should not be viewed as a comprehensive statement of California law on this issue.

Dilworth v. Tiernan

Published on: September 5, 2014

California May Adopt Uniform Law on Conservatorships

by Scott C. Soady

California is poised to join the majority of its sister states in adopting a uniform law designed to promote interstate cooperation on the subject of adult conservatorship proceedings. In May, the California Senate passed SB-940, a bill that would enact the Adult Guardianship and Protective Proceedings Jurisdiction Act, a model law created by the National Conference of Commissioners on Uniform State Laws. A California Assembly committee approved the Senate bill on July 2, and it is likely to pass the full assembly sometime this month.

Making Interstate Conservatorships Easier

A conservatorship proceeding may be necessary when an adult cannot manage his or her own financial, personal or health care decisions. For example, an adult child might petition a California court to be named conservator of her elderly father’s person or estate because he suffers from dementia. In California, a probate court supervises such conservatorship proceedings.

Published on: September 4, 2014

Leaving a Legacy or Financial Abuse of the Elderly?

by Scott C. Soady

Many people use their estate plan to “leave a legacy.” A common example of this is making a gift to a charitable organization as part of a last will and testament. A person might, for instance, leave a gift to a university with instructions to establish a scholarship in his or her name. Some wealthier individuals might go so far as to establish a charitable foundation as part of their estate plan.

Then there are more unusual efforts at leaving a legacy that, unfortunately, often lead to expensive and unnecessary litigation. A recent case from Illinois presents one example. The case involved the estate of the late Virginia Rogers. In 2000, Rogers was a widow with no children or other immediate family. In a purported effort to continue her family name, Rogers signed a contract with her neighbor, George Dohrmann, whereby she would leave more than $5 million worth of property from her estate to him; in exchange, Dohrmann agreed to legally change the names of his two children to include the middle name “Rogers.”

Dohrmann apparently held up his end of the bargain. Rogers, however, did not amend her estate planning documents to reflect the terms of this supposed agreement. Instead, Rogers’ will left her estate to various friends, distant relatives and charities. In 2004, Rogers transferred ownership of her apartment-which Dohrmann claimed was part of the $5 million promised to him under the contract-to her living trust. By 2008 Rogers, who suffered from dementia, was judged legally incompetent to continue managing her own affairs.

Published on: August 31, 2014

Medi-Cal and “Estate Recovery”

by Scott C. Soady

An estate is not only responsible for distributing property after your death. It must also pay any valid debts to the extent your assets allow. Medical debts are a common expense most estates must pay. And if the deceased received health care benefits from the California Medical Assistance Program (Medi-Cal), the estate may have to reimburse the State of California for some of those expenses.

Estate Recovery

This is known as estate recovery. Medi-Cal is part of the federal Medicaid program. Medicaid rules require states to try and recoup the costs of certain long-term care from the estates of now-deceased recipients. California law goes even further and seeks recovery of costs for most covered services provided to people ages 55 and over. The Affordable Care Act (aka “Obamacare”) prohibits California from conducting estate recovery if the beneficiary was under 55 and received coverage under the low-income expansion to Medicaid and Medi-Cal.

Published on: August 29, 2014

The Importance of Safekeeping Your Will

by Scott C. Soady

A last will and testament does little good if nobody can find the document after you pass away. It is important to safeguard your signed, original will as it must be filed with a probate court in order to formally open an estate. As a general rule, California courts will not accept photocopies of wills.

Any delay in locating a will may produce significant complications for your estate. As an illustration, consider a recent California appeals court decision which is discussed here for informational purposes only. The case arose from a horrific 2009 murder-suicide that resulted in the death of Elizabeth Fontaine, her mother and Fontaine’s two small children. Fontaine left a will naming her cousin, Jennifer Hoult, as executor.

At the time of her death, Fontaine worked as an attorney at a prominent Los Angeles-area law firm. Hoult made several attempts to locate Fontaine’s will, which she believed the firm held for safekeeping. But it was not until 2013-four years after Fontaine’s death-that the will was found. (The law firm entered bankruptcy in 2011, and the trustee assigned to distribute the firm’s assets ultimately found the will.)

Published on: August 22, 2014

What Is a “Pour-Over” Will?

by Scott C. Soady

In estate planning, a “pour-over will” is a document signed in conjunction with the creation of a living trust. A pour-over will is like any other last will and testament, except that it distributes-or “pours over”-any probate assets to the related living trust. In this sense, the pour-over will is a backup that ensures no assets remain outside of the trust.

The Difference Between a Will and a Trust

Many people simply dispose of their estate through a will. This means the person leaves an estate subject to probate before the California courts. When the person dies, his or her will must be filed with the court, an executor is named (usually by the will) and assets are distributed according to the terms of the will.

Published on: August 17, 2014

What Happens to an Estate With No Heirs?

by Scott C. Soady

Dying without a will is never a good idea. In California, like all states, there are laws governing the succession of intestate estates-that is, estates where the deceased failed to leave a will. The intestate succession law directs the distribution of property to your closest living relatives. But what if you have no living relatives or they fail to make themselves known to the probate court? In such cases your estate is “escheated” or transferred to the state as unclaimed property.

If a living heir appears within five years of the initial escheat, he or she may file a petition in court to claim your estate. After the five-year period expires, however, your estate becomes the permanent property of the State of California. And once a distribution is made to a claimant, it excludes any rival claims that may arise, as one recent California appeals court decision demonstrates.

Estate of Dickson

Published on: August 15, 2014

When a person dies without a will, California law specifies an order of precedence for individuals entitled to act as executor or administrator of the estate. A surviving spouse or domestic partner has top priority over all other persons, including the ch

by Scott C. Soady

When a person dies without a will, California law specifies an order of precedence for individuals entitled to act as executor or administrator of the estate. A surviving spouse or domestic partner has top priority over all other persons, including the children or parents of the deceased. Obviously, this assumes the spouse or domestic partner has a legally recognized relationship. In some cases, California courts will recognize a “putative” spouse or domestic partner-someone who has a good faith belief they were the deceased’s spouse or domestic partner despite the failure to obtain legal recognition.

A recent California Court of Appeals decision illustrates the confusion that can arise when a person claiming to be a spouse or domestic partner fails to support his or her claim. This case is discussed here for informational purposes only and should not be construed as a complete statement of California law on this subject.

Estate of Langman

Published on: August 3, 2014

Making Charitable Bequests In Your Will or Trust

by Scott C. Soady

Many people wish to “leave a legacy” by making a charitable contribution through their estate plan. The Internal Revenue Service, which collects data from large estates required to file a federal estate tax return, reported more than $1.6 billion in charitable bequests from California residents alone in 2012. Charitable bequests are popular precisely because they are deductible from the value of an estate for federal estate tax purposes. (California does not impose an estate tax at the state level.)

What Is a “Charitable Organization”?

There are many ways to provide for a charity in your will or trust. First, you should understand what is meant by “charity.” The IRS is responsible for recognizing charitable organizations. Broadly defined, a charitable organization is one that operates not-for-profit-that is, there are no shareholders who receive dividends-and fulfills one or more “exempt purposes” as defined by law. These exempt purposes include: