Never Wait Until the Last Minute to Make a Will

April 11, 2014

Ideally, estate planning is something you do long before it becomes necessary. It is never a good idea to wait until you are on your deathbed to make a will. You may run out of time before you can execute a will that meets with the legal requirements of California or another state where you reside.

Piper v. Dimmers

A recent Michigan case illustrates the perils of last-minute or incomplete estate planning. Grace Reid died in 2011 at the age of 69. Reid was unmarried and had no children. Absent a will, Michigan law would distribute her estate—which consisted primarily of some land—to her siblings. After she was diagnosed with heart disease, Reid met with an estate planning attorney to discuss her will. For some reason, she never followed up with the attorney prior to her death.

However, three years earlier, Reid made some handwritten notes regarding her estate. As described by the Michigan Court of Appeals, “The document consists of barely legible notes on two sides of a single sheet of personal stationary bedecked with birds, butterflies and a bible quote.” Several names were written and crossed out or changed. Basically, it was a list of people with dollar amounts, presumably gifts Reid intended to leave through her estate. Among the names were two friends, Sandra and Amy Piper. Reid gave the document to Sandra Piper for safekeeping.

After Reid's death, Piper asked a Michigan probate court to admit the handwritten notes as a valid last will and testament. Michigan does recognize “holographic wills”--documents that are signed, dated and in the handwriting of the person making the will. Unlike traditional wills, holographic wills are not typed and lack the signatures of at least two witnesses.

The Michigan courts rejected the alleged will. At best, the Court of Appeals explained, the document was a draft designed to “organize [Reid's] thoughts and determine how to divide her estate.” There was insufficient evidence to prove the document accurately expressed Reid's intent to make a final disposition of her property.

The Perils of “Holographic” Wills

Like Michigan, California law does permit the probate of handwritten or “holographic” wills. Such wills must be entirely in the person's handwriting should be dated. Failure to date a holographic will may lead a court to declare it unenforceable, especially if it conflicts with another will found among your effects.

While there may be certain emergencies that necessitate the use of a holographic will—such as the man who wrote a will on the side of the tractor he was trapped under—in almost all circumstances, it is better to draft a proper will with the assistance of a qualified California estate planning attorney. Wills don’t need to be complicated. It is only important that the will clearly expresses your intentions and is signed in the presence of at least two witnesses. This minimizes the chances of any confusion (and litigation) after your death. If you have any questions about making a will, please contact the Law Office of Scott C. Soady in San Diego.

What You Need to Know about Estate Planning and “The Cloud”

April 10, 2014

In the Internet age, your estate no longer includes just physical property but digital assets like social media accounts, cloud storage and even computer-based currency. Taking stock of your digital assets is therefore an essential part of California estate planning. Here are a few issues to consider with respect to your “online estate.”

Online Devices and Cloud Storage

Recently the BBC reported on the story of Anthea Grant, a woman who passed away from cancer. Grant's will directed her estate be divided equally among her five children. The children decided among themselves how to allocate individual pieces of property. Grant's son Joshua received her iPad, manufactured by California-based Apple Inc.

Unfortunately, while Joshua Grant took physical possession of the iPad, he could not use the device without his late mother's Apple ID and password, which none of the family members knew. Apple refused to unlock the device without written consent from the account holder, who was obviously deceased and therefore unable to do so. Even after Joshua Grant provided written proof of his mother's death, Apple would only restore the iPad to its factory settings; it would not provide access to Anthea Grant's files—which were part of a cloud account—without a court order.

If you have any type of cloud storage account, it is important to review the terms of service. Some services may simply suspend or delete an inactive account. Others may transfer an account to an executor or heir. Much like banks, an executor may need to provide a copy of the account holder's death certificate and a court order authorizing the executor to act—usually known as testamentary letters—before the cloud service will grant access.

The Bitcoin Dilemma

Other types of digital assets may prove even more difficult for your estate or heirs to access. Digital currencies like Bitcoin have become popular in recent years. Bitcoin uses a public ledger called a “block chain” to manage peer-to-peer transactions. The block chain also “mines” new bitcoins. Individual users store their bitcoins in a “digital wallet” that uses a pair of cryptographic keys.

The dilemma is that if the user forgets or loses the keys—or simply loses the computer or device that stores the digital wallet—there is no method of recovery. Unlike a cloud storage service, there is no central authority who can reset or access a bitcoin digital wallet. The bitcoins are simply lost.

If you own bitcoins or a similar type of currency, it is therefore essential to keep backups of your cryptographic keys together with your other estate planning documents. Some Bitcoin experts also maintain other technical methods of verifying a digital wallet owner's death and transferring the bitcoins to his or her estate. As this a continually evolving technology, it is important to consult with a California estate planning attorney before taking any action.

Estate Tax Implications

Bitcoin and digital currencies may also raise possible federal estate tax issues. The Internal Revenue Service recently issued guidelines stating that Bitcoins are to be treated as property rather than currency. Once again, that is why you should work with an experienced attorney who can keep you apprised of legal developments. Contact the Law Office of Scott C. Soady today if you have any questions.

Family Heirlooms Can Lead to Family Litigation

April 9, 2014

We often read stories about heirs fighting over a deceased relative's multimillion-dollar fortune. But some estate disputes arise over seemingly trivial matters. The common thread in many of these disputes is insufficient direction from the deceased person's estate plan.

A One Hundred Dollar Case

Recently, the Supreme Judicial Court of Maine had to settle an argument between relatives over the possession of a single item valued at just $100. The deceased was Ada Greenblatt, a Maine realtor with no children, but two surviving siblings and several dozen nieces and nephews. Upon Greenblatt's death in 2008, her will made several specific gifts and left the remainder of her estate to her siblings in equal shares. If any sibling died before her, that share would be divided among his or her children.

The will did not provide further instructions on how to divide the residuary estate. Instead it was left to the judgment of Greenblatt's executors—her brother Owen and a nephew, Stephen Singer—to apportion the estate's real and personal property. As the Maine Supreme Court noted, “Many of the personal property items do not have significant monetary value but have sentimental value to members of the family.” The executors made a list of all personal property items and allowed individual beneficiaries to select items. However, Owen Greenblatt and his only surviving sibling reserved the right to claim certain items for themselves before allowing the other beneficiaries to select. Most of the items were family heirlooms that originally belonged to the parents of Ada and Owen Greenblatt.

In the end, the executors fulfilled the requirements of the will. Each beneficiary received a share of equal monetary value. But one beneficiary, Mark Levine, was still dissatisfied. Levine was Ada Greenblatt's nephew. He wanted to claim a mizrah—a traditional Jewish wall plaque used to facilitate prayer—but Owen Greenblatt had reserved that item for himself. Levine challenged this action in court.

Both the probate court and the Maine Supreme Court rejected Levine's challenge. He claimed that the executors abused their authority by preferring some beneficiaries over others in distributing the personal property items. But as the Supreme Court explained, it was reasonable for the beneficiaries to prefer those beneficiaries who were most closely related to the deceased, in this case Ada Greenblatt's siblings. Furthermore, Owen Greenblatt was unaware of Levine's interest in the mizrah at the time he made the distribution, so there was no bad faith on his part.

Preventing Petty Arguments

It may seem ridiculous that anyone would go to court over a $100 wall plaque. But sentimental value often trumps economic considerations. If you are making your own estate plan, you can avoid such disputes by making explicit who you wish to receive certain family heirlooms. This need not be done in the text of your will; you might simply attach a list of items for the benefit of your executor. You could also include a clause in your will that clearly states the executor has sole discretion to distribute such items as he or she sees fit.

However you choose to address these issues, it is important you work with an experienced California estate planning attorney who can help you avoid any legal pitfalls. Contact the Law Office of Scott C. Soady today if you have any questions.

Conservatorship Disputes Can Divide Families

March 28, 2014

In dealing with an elderly person who suffers from dementia or who otherwise loses the capacity to make decisions, it may be necessary to create a conservatorship. This occurs when a probate court appoints someone to act as the disabled person's agent in making legal, financial and healthcare decisions. Careful estate planning should include a power of attorney that nominates a guardian or conservator if either becomes necessary.

Unfortunately, disputes may arise between family members over how to handle a conservatorship. A recent California case—which actually involves courts in two different states—helps illustrate the problems than can arise from a conservatorship. This case is discussed here for informational purposes only, and should not be construed as an authoritative statement of California law on the subject.

Owens v. Thayer

The subject of this case is Homer Owens, who is now deceased. Owens married his second wife, Emerald Owens, in 2002. Both spouses had adult children from their respective prior marriages. During the course of the marriage, Homer Owens suffered from dementia and Parkinson's disease.

In 2009, Homer Owens signed a new will naming his wife as executor. He also prepared, but apparently did not sign, a power of attorney naming Emerald as his guardian or conservator, should the need arise. That same year, Emerald Owens traveled to Hawaii with her daughter, leaving her husband with two nurses and one of his children.

While in Hawaii, Emerald Owens received a call from Paul Thayer, Homer's son-in-law and an attorney. He said that Homer and his children had decided it was in his best interests to divorce Emerald and move to Utah, where his daughter Sandra lived. Twenty minutes after receiving this news, Emerald Owens suffered a stroke.

Homer Owens filed for divorce in California and moved into a nursing home in Utah. As his condition continued to deteriorate, Douglas Thayer filed a petition in the Utah courts for appointment as Owens' conservator. Owens appeared to consent to the appointment, and signed a power of attorney naming Thayer as his agent. Emerald Owens later contested the appointment, but the court agreed with Thayer she was disqualified from serving due to the divorce proceedings, as well as her own health issues following the stroke.

The divorce proceedings continued, although it was moved from California to Utah, and eventually Thayer, acting as Homer Owens' conservator, signed a settlement with Emerald Owens. The parties remained legally married, but each spouse waived any claim over the property or estate of the other. Emerald Owens also withdrew her appeal of the Utah conservatorship order.

Several months later, however, Emerald Owens filed a new lawsuit in California against Thayer and her husband's children. She claimed they had “kidnapped” her husband and forced him to initiate divorce proceedings against his will, causing her stroke and emotional distress. Both the trial court and the California Court of Appeals rejected the lawsuit, holding that the factual questions underlying her complaint were already litigated and decided during the Utah conservatorship proceeding. Under a legal principle known as “collateral estoppel,” when one court has already ruled on a particular issue, another court (outside of the appeals process) will not disturb those findings.

Acting Before It's Too Late

It's too late when a person has lost the capacity to make decisions for himself. That's why it's important you work with an experienced California estate planning attorney today who can advise you on the preparation of a power of attorney and other documents regarding the potential need for a guardian or conservator. Contact the Law Office of Scott C. Soady today if you have any questions.

$4.2 Million Judgment, Lack of Proper Probate Lead to Family Feud

March 27, 2014

Court judgments are an asset that must not be overlooked as part of your estate planning. For example, if you are receiving the proceeds of a personal injury lawsuit, that is an asset you must factor in to your will or trust. Similarly, if any litigation is pending at the time of your death, your executor becomes your legal successor in continuing the lawsuit. Therefore, it's imperative you leave a will and name an executor, rather than leaving such decisions up to a probate court.

Unfortunately, large personal injury awards can breed further discord among relatives seeking a piece of the pie. This was evident in a recent California appeals court decision. The case, which is discussed here solely for informational purposes, nevertheless highlights the importance of estate planning as it relates to managing court judgments.

Kitchen v. Foxford

Loree Isenberg was the victim of a terrible accident in 2001, when an Anheuser-Busch beer truck struck the car in which she was riding. She subsequently required constant at-home nursing care. Isenberg eventually died in 2003.

Isenberg filed a personal injury lawsuit against Anheuser-Busch. In early 2003, a jury ruled in her favor and awarded over $4.2 million in damages. Anheusher-Busch's appeal was still pending when Isenberg died. The appeal was ultimately denied.

Isenberg left a will that she signed in April 2002. The will left Isenberg's entire estate to one of her children, Deborah Collis, and two other individuals. Collis was the only one of Isenberg's six children to inherit under the will. Collis herself passed away in 2004.

The attorneys who represented Isenberg in her Anheuser-Busch lawsuit apparently did not open a probate estate to receive the proceeds of the judgment. Instead, they simply collected their fees and distributed the remainder of the $4.2 million to the heirs named in the will.
Toni Kitchen, one of Isenberg's disinherited children, challenged the will. She claimed her sister, the late Deborah Collis, exercised “undue influence” over their mother. A probate judge rejected the lawsuit and held that the will was valid. The California Court of Appeals affirmed this decision in an opinion issued on February 21 of this year.

Appointing Responsible Agents

It's highly unusual that Isenberg's personal injury attorneys failed to open a probate estate. As the Court of Appeals noted, without an estate, Isenberg's creditors never had an opportunity to present their claims, which is their right under California law. The lack of an estate also meant no personal representative was ever appointed to represent Isenberg's probate interests. (In contrast, after Deborah Collis' death, a probate estate was opened—as the inheritance from her mother was a substantial asset—and her son named personal representative.)

Estate planning doesn't mean much if proper agents are not appointed and don’t carry out their duties under the will. In preparing a will, it's essential to nominate responsible agents who won't take shortcuts or shirk the requirements of California law. It's also important to work with an experienced California estate planning attorney who understands the probate process. Contact the Law Office of Scott C. Soady today if you have any questions.

Actor Philip Seymour Hoffman's Will Provides Insight Into Estate Planning Process

March 24, 2014

Academy Award-winning actor Philip Seymour Hoffman died on February 2, 2014. His last will and testament was recently filed in a New York City probate court. Curiously, the will directed Hoffman's executor to distribute his estate according to the provisions of New York intestacy law, which normally applies to estates in which there is no will. In this case, that presumably means Hoffman's entire estate will be equally divided among his three minor children. Hoffman had a longtime partner, Marianne O'Donnell, but they never married and, according to media reports, separated shortly before his death. O'Donnell, however, was still named executor of Hoffman's estate.

Distinguishing Desires from Directions

A number of media outlets mentioned a particular clause in Hoffman's will, in which he asked that his son—he and O'Donnell only had one child at the time he signed the will—be raised in New York City, or alternatively in either Chicago or San Francisco. In reality though, the will made no such demand, and O'Donnell will presumably retain full custody of all three children. Had she died before Hoffman, however, his will nominated a guardian—O'Donnell's sister—to assume custody. In that event, the will asked the guardian to take into account Hoffman's “strong desire, but not direction” that his son be raised in either New York, Chicago or San Francisco. Nothing in the will though restricts O'Donnell's right to determine where her children should live.

It's not unusual for individuals to make these types of “last requests” in a will. As we noted last year, another famous actor, the late James Gandolfini, made a request in his will that his children retain a piece of property “in our family for as long as possible.” In California, such “precatory” language has no legal force. They are not commands to the executor—or in the hypothetical case raised by Hoffman's will, a guardian—but simply words of advice.

Update Your Will Regularly

It's also notable that Hoffman signed his will in 2004, almost 10 years before his death. The will failed to account for his two children born after 2004. That does not affect their right to inherit under the will, but it does highlight the all-too-common neglect demonstrated towards estate planning.

Such neglect can prove costly. Just recently in California, another high-profile actor, Paul Walker, died and left an estate with an estimated value of over $25 million. Like Hoffman, Walker signed a will many years before his death. In Walker's case, it was also before he became a major star for his role in the “Fast & Furious” films. His 13-year-old will failed to include common estate planning devices designed to reduce federal estate tax liability. As a result, his estate may owe the U.S. Treasury a significant tax payment.

Even if you're not a Hollywood star who goes before his time, it's important to review and update your will on a regular basis. Life events, such as the birth of a child, divorce or financial success, can alter your estate planning requirements. If you're looking to make or revise a will, consult with an experienced California estate planning attorney. Contact the Law Office of Scott C. Soady today with any questions.

Striking Oil Prompts Lawsuit Over Long-Dormant Estate

March 21, 2014

Many people do not bother to create a will because they don't have much property. Why go to the trouble and expense when you own so little? But a will—and estate planning in general—isn't just about what you own today, but what you might own in the future, and failing to leave a will can lead to legal complications, even years after your death. That's especially true when your heirs discover property interests that were not obvious at the time of your death.

Estate of Huston v. Huston

A recent case from North Dakota illustrates the problems associated with not making a proper will. The case involved a Wyoming man, Virgil Huston, who died 14 years earlier. Huston's heirs included his wife, Wilma Russell, and three adult children from a prior marriage. At the time of his death in 2000, the family believed Huston owned nothing except a car worth about $200. Not surprisingly, he left no will.

At the time, there was seemingly no need to open an estate. But years later, Russell learned her late husband owned some mineral rights in McKenzie County, North Dakota. “Mineral rights” refer to a property interest in raw materials—such as oil or gold—beneath the surface of the land. In many cases, different owners may control the surface and mineral rights to a given parcel. Typically, mineral rights are leased to companies that actually extract the raw materials; the mineral rights’ owner then receives a royalty in addition to the lease payment.
In 2005, Russell and her stepson, James Huston, leased the mineral rights to the McKenzie County property, to an oil and gas company. Seven years later, the company struck oil. Russell then moved to open a probate estate in North Dakota, as the mineral rights remained her late husband's property.

As Virgil Huston left no will, the ultimate distribution of the mineral rights royalties will be decided by North Dakota's intestate succession law. This has already led to litigation between Russell and her stepson. James Huston claims his stepmother is trying to cheat Virgil Huston's children out of their share of the mineral rights proceeds. So far, the courts have sided with Russell. In North Dakota, the spouse of a person who dies with no will is entitled to the first $100,000 of the estate. It has yet to be conclusively determined if there is more than $100,000 in royalties at issue.

Planning for Future Success

Of course, at the time of Virgil Huston's death, the mineral rights were valued at about $160. There was no way to know if the rights would ever amount to anything. But Huston's failure to make a will means that at least some of the oil fortune recovered from the North Dakota site will go to lawyers rather than his family.

None of us can ever know what our financial futures will be. Regardless of your present situation, it's always important to consult with an experienced California estate planning attorney who can help you provide for the future. Contact the Law Office of Scott C. Soady in San Diego today if you have any questions.

Using a Life Estate to Protect Your Spouse's Right to Remain at Home

March 14, 2014

A life estate provides a means of transferring real property before death. In a life estate, Person A conveys the title to his house to Person B with the stipulation that Person A may continue to live in the house until his death, at which time Person B assumes sole ownership. It sounds simple enough, but life estates can produce unforeseen complications, as one recent California appeals court decision demonstrates. This case is discussed here for informational purposes only and should not be considered a complete statement of California law on the subject of life estates.

McCay v. Turnboo

The parties in this case are a stepfather and stepson. The stepfather, Warren Turnboo, married his wife Helen in 1960. She had a son, Brian McCay, from a prior marriage. Helen Turnboo brought to her second marriage the house she acquired following the dissolution of her first marriage. At the time of her second marriage, there was a mortgage of about $9,600 on the property. Helen Turnboo remained sole owner of the house, but she and her second husband lived there together and they use their funds to pay household expenses, including the mortgage. The mortgage was finally paid in 1978.

In 1987, Helen Turnboo created a living trust as part of her estate plan. The trust granted Warren Turnboo an unconditional life estate in the house upon her death. Helen later conditioned the life estate to require her husband to live continually in the house by himself following her death. In other words, the life estate would terminate if he left the house or remarried. Brian McCay would formally acquire the title to the house upon his mother's death, and become sole owner once his stepfather's life estate terminated.

Helen Turnboo died in 2005. Following his mother's instructions, Brian McCay recorded a deed transferring title to the house to himself while acknowledging Warren Turnboo's life estate. Everything proceeded as planned until 2011, when McCay sued his stepfather, claiming he had failed to pay some property insurance premiums. McCay said this failure violated the terms of the life estate.

The courts disagreed. A trial court held that paying insurance premiums was never a condition stipulated by Helen Turnboo in her estate planning documents creating the life estate. More importantly, it turned out Warren Turnboo rightfully owned part of the house outright. Since marital funds were used to pay down the mortgage and make other improvements, the court explained, part of the house became community property. And under California law, Helen Turnboo could only dispose of one-half of any community property interest through her trust. The remainder—a roughly 38% interest in the house—belonged to Warren Turnboo. The Court of Appeals later upheld the trial court's decision in its entirety.

Taking Care When Using a Life Estate

As this case shows, it's important to specify the conditions of any life estate created through a will or trust. All of the parties involved should be on the same page when it comes to what is expected and required. As with all such documents, it's essential you work with an experienced California estate planning attorney. Contact the Law Office of Scott C. Soady today if you have any questions.

Bing Crosby Lawsuit Highlights Role of “Publicity Rights” in Estate Planning

March 7, 2014

Estate planning is about providing for the future. Sometimes, it's about providing for a very distant future. For example, the famous actor and singer Bing Crosby died nearly 40 years ago, yet a California appeals court just recently issued a decision regarding property that still belongs to his estate. Even more remarkably, the other party to the case represents the estate of Crosby's first wife, who died more than 60 years ago.

Crosby v. HLC Properties, Ltd.

Harry “Bing” Crosby, Jr., began singing professionally in the 1920s. His most famous recording, that of the Irving Berlin song “White Christmas,” reached No. 1 on the charts in 1942. Also during the 1940s, Crosby became well known as an actor, appearing with Bob Hope in a series of movies, and winning an Academy Award in 1944.

Crosby married his first wife, Wilma Wyatt—known professionally as the singer and actress Dixie Lee—in 1930. The couple had four children before Wyatt died of cancer in 1952. Wyatt's last will and testament directed that all community property from her marriage should be placed in trust for the benefit of her children.

Crosby remarried five years later. His second wife, Olive Kathryn Grandstaff, known professionally as Kathryn Grant, is still living. When Crosby died in 1977, his will left his estate to a marital trust for Kathryn Grant's benefit.

Crosby's business interests were assigned after his death to a new company, HLC Holdings. Among the intellectual property assigned to HLC were Crosby's “publicity rights” under California law. Since the 1970s, California has recognized a person's right in his or her “name, likeness and identity.” But the law has changed considerably since the time of Crosby's death.
In 1996, the trust representing Wilma Wyatt's estate sued HLC Holdings, alleging it was entitled to a share of the royalties for Crosby's publicity rights, as some of it represented the “community property” of Crosby and Wyatt at the time of her death in 1952. The parties settled this litigation in 1999. The Wyatt trust released its claims in exchange for $1.5 million.

In 1985, the California legislature declared that a celebrity who died within the previous 70 years could transfer his or her publicity rights via a will or trust. But in 2007, federal judges addressing claims related to the late Marilyn Monroe said the California law did not apply to wills signed before the law was enacted (January 1, 1985). That would include the Crosby estate, as he died eight years before the law came into force.

But in 2008, Gov. Arnold Schwarzenegger signed a new law that overruled the court decisions and retroactively declared that any will or trust executed prior to 1985 could dispose of publicity rights. Based on this amendment, the Wyatt trust filed a new claim against HLC, arguing the 1999 settlement did not account for this newly created right.

The Court of Appeals, however, didn't see it that way. Reversing a trial court's decision in favor of the Wyatt trust, the appeals court said the 2008 amendment “only clarified existing law,” and did not create a new substantive right. And since the 1999 settlement included a release of all existing legal claims against the Crosby estate, the Wyatt trust was entitled to no further compensation.

Taking Stock of Intellectual Property

Publicity rights are an unusual form of intellectual property recognized in California. Other types of intellectual property, such as copyrights and patents, are creatures of federal law. If your estate includes any type of intellectual property, it's important to consult with an experienced California estate planning attorney who can advise you on the best way to dispose of such intangible items in your will or trust. Contact the Law Office of Scott C. Soady today if you have any questions.

When Is a Child Accidentally Omitted from a Parent's Will?

March 5, 2014

It's important to update your estate plan after a major life event, such as the birth of a child. An accidental omission may be correctable under California law, but it adds to the burden of your estate's executor and the courts. A recent California Court of Appeals decision demonstrates how a not-so-accidental omission of a child can still lead to costly litigation.

Peltner v. Herterich

This case is discussed here for informational purposes only and should not be treated as a complete statement of California law on this subject. The deceased in this case is Hans Herbert Bartsch, who died in 2008. Bartsch signed a last will and testament in 2007, leaving his estate to various friends and family, most of whom resided in Germany. Bartsch's will declared that he was unmarried and had no children.

After Bartsch's death, Norman Bartsch Herterich came forward and claimed to be Bartsch's son. Herterich was born in 1961, and he said a court ruling in 1963 established Bartsch's paternity. Herterich claimed Bartsch either forgot or did not believe that he was his child, leading to his omission from the will.

Under California law, if a parent omits a child from a will because he believes the child is dead—or was unaware of the child's birth to begin with—a probate court may order the estate to pay the child the share of the estate he would have received if the parent had died without leaving a will at all. Herterich claimed this applied to his situation. Arndt Peltner, the executor of Bartsch's estate, disagreed.

After lengthy court proceedings, requiring two trips to the Court of Appeals, the executor prevailed. The appeals court explained in its second opinion that “with respect to a child born before the making of the will, the burden of proving that the decedent did not intend to omit the child—because the decedent thought the child was dead, or was unaware of the child's birth—is on the child.” (Emphasis in original) This means Herterich had to prove that Bartsch was unaware he had a child at the time he made his will. But Herterich's own arguments undermined that position, as he introduced evidence of the 1963 paternity cases—which resulted in a legal finding that Bartsch was his father, and subsequently ordered the payment of child support. Furthermore, Bartsch paid said child support for nearly 20 years.

Given all this, the court found it hard to believe that Bartsch accidentally excluded Herterich from his will. Bartsch may have disputed the 1963 court's finding on paternity—prompting him to state he had no children in his will—but his compliance with its orders clearly suggests he was aware of an alleged child. The court concluded Bartsch simply decided not to provide for Herterich in his will, as was his right.

Keeping Your Will Up to Date

California's law regarding omitted heirs is supposed to provide for genuine cases in which a person fails to include a child that he or she was unaware of—or who wasn't born at the time the will was made. When a new child does enter your life, it's essential that you update your estate planning to make your intentions towards that child plain. A California estate planning attorney can advise you on the best way to update your will and other important documents. Contact the Law Office of Scott C. Soady in San Diego if you have any questions.

What Happens If I Accidentally Sign My Spouse's Will?

February 27, 2014

It's common for spouses to execute a joint estate plan, signing their respective wills at the same time under the advice of the same estate planning attorney. What's uncommon is when the spouses inadvertently sign each other's wills. While it may sound ridiculous that such an error would go unnoticed, just such a situation occurred in the United Kingdom—and it required a decision by that country's Supreme Court to correct the mistake.

Marley v. Rawlings

Alfred and Maureen Rawlings made their wills in 1999. They hired a solicitor—an English lawyer who specializes in estate planning—to prepare the documents. The wills were not complicated. Each spouse left his estate to the other, and if the other spouse was already dead, the estate would pass to Terry Marley, a family friend. The Rawlings had two children but, for whatever reason, they chose not to include them in their estate plan.

The solicitor accidentally mixed up the Rawlings wills, so that Alfred signed Maureen's will, and vice versa. The mistake went unnoticed when Maureen Rawlings died in 2003 and her estate passed to Alfred Rawlings. But when Alfred Rawlings died in 2009, his sons challenged the will. They argued it was not validly executed under British law as Maureen Rawlings was the person named in the document.

The children had good reason to challenge the will. Like California, under British law, if a person dies without a will, his children automatically inherit the estate as next-of-kin. Terry Marley, the sole beneficiary named in the will, obviously objected to the children's' contest.

An English probate judge rejected Marley's efforts to probate Alfred Rawlings' erroneous will. The Court of Appeal for England and Wales upheld the probate judge. Both courts agreed the will was not executed in accordance with the applicable English law. (Similar to American states, England and Scotland have distinct probate law systems.) Marley then appealed to the Supreme Court of the United Kingdom.

That court unanimously ruled for Marley and held the will could be admitted to probate. Lord Neuberger, the president of the Supreme Court (the equivalent of our Chief Justice) said that British law permitted courts to rectify “clerical errors” in wills in order to carry out the intent of the person making the document. Nobody disputed Alfred Rawlings intended to sign a will leaving his estate to Marley. The solicitor's mistake should have been corrected by the lower courts, according to Lord Neuberger.

Read Before You Sign

Obviously, this extended litigation would have been unnecessary had the Rawlings taken time to read their wills 15 years earlier before signing them. A simple “clerical error” proved anything but simple to correct.

In California, a will that is not properly executed may still be admitted if the person presenting the will can show “by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will.” That suggests an error like the one in the Rawlings case would not be fatal. But again, it's best not to leave it up to the courts. That's why it's important to work with an experienced San Diego estate planning attorney when drafting a will. Contact the Law Office of Scott C. Soady today if you have any questions.

Presumptions Regarding a Lost or Missing Will

February 25, 2014

A last will and testament is an important legal document. It is not something that should be drafted or signed without careful consideration. And once a will is signed, it's essential to keep the original in a safe place where it may be located after the person's death.

As a matter of law, an executor must file a signed, complete, and original version of a purported last will and testament. In many cases, an estate planning attorney will have a client sign duplicate originals. While a photocopy of a will has been admitted to probate in some cases, it is never advisable or ideal. California law presumes that a missing will is presumed revoked, assuming it was last in possession of the person who made it. This is only a presumption that can be overcome by additional evidence, such as a photocopy, but again this is neither advisable nor ideal, especially in cases where a will is contested by one or more parties.

In re Estate of Dixon

A recent Texas case illustrates the problems with missing original wills. In this case, the deceased was Floyd Dixon. He signed a will in 2000 naming one of his eight children, Rosalyne, as executor. Dixon placed the signed original in a safe deposit box that only he and his daughter could access. He also gave his daughter a photocopy of the original will.

After Dixon's death, his daughter searched the safe deposit box but could not find the original will. She then tried to probate the photocopy her father had given her. Neither the trial court nor the Texas Court of Appeals would allow this.

Like California, Texas law presumes that a missing original will has been revoked by its maker. The Texas courts said Dixon's daughter failed to present sufficient evidence to rebut this presumption. To the contrary, the Court of Appeals noted that by all accounts, Dixon voluntarily removed the will from his safe deposit box and destroyed it. Testimony before the trial court suggested Floyd simply wanted to amend his estate plan to provide a greater inheritance for his third wife. And in any case, Dixon's daughter presented no evidence to the contrary.

In many respects, Floyd Dixon executed a model estate plan. He kept his original will in a safe place that his intended executor could access. But he apparently neglected to tell his family that he revoked his will just before his death. This omission led to costly litigation.

A person is always free to amend or revoke a will during his or her lifetime. It's also important to maintain a clear chain of custody with respect to any original documents: When you make a new will, it should revoke the prior will, but I can be beneficial to keep the old will. That way there is no confusion about which document specifies your wishes. As always, an experienced California estate planning attorney can advise you of the best course of action. Contact the Law Office of Scott C. Soady today if you have any questions.