San Diego Estate Planning Lawyer Blog
Even the best laid estate plan does not execute itself. It is essential that your chosen fiduciaries carry out your wishes. If they depart from your plan, even inadvertently, it can have repercussions that last years, and in some cases decades.
Failing to Follow the Will as Written
Here is a recent example. Actually, “recent” is misleading given the decedent in this case died over 25 years ago. The decedent was a married man with three children. He signed his first will shortly after his marriage in 1942. Forty years later, in 1982, he signed a new will, which he amended once in 1987.
Of note here, the 1982 will provided each of the man’s three children would receive a distribution upon his death equal to the maximum federal estate tax deduction at the time. The rest of the estate would then be placed in a marital deduction trust, an estate planning device commonly used to defer federal estate tax liability. The man’s wife would enjoy the income from the trust during her lifetime, and upon her death the trust would terminate and be divided equally among the three children.
But after the man died in 1989, his wife failed to probate the 1982 will. Instead, she claimed her husband died without a will and filed a petition to receive his entire estate-about $28 million-under a spousal property order. This is a simplified probate process used to transfer community property to a surviving spouse. A probate judge issued the spousal property holder, determining no probate of the husband’s estate was necessary.
About a year later, however, the husband’s two sisters attempted to probate the original 1942 will, which left them half of his estate. (The husband made no provision for either sister under the 1982 will as amended.) At this point, the wife suddenly discovered the 1982 will, which was then probated. Although the wife was appointed executor under the will, she never administered her husband’s estate or created the marital deduction trust, instead assuming direct control of the estate’s assets under the previous spousal property order.
The wife eventually created her own living trust. Unlike her husband’s trust, the wife did not provide for an equal distribution to her children upon her death. Instead, she left a larger share to one daughter. After the wife died in 2014, her son asked a probate court to enforce his father’s original 1982 will, demanding his mother’s estate essentially reimburse his father’s (still-open) estate for misappropriating the father’s share of the couple’s community property. The daughter then filed an objection to her brother’s petition.
But the probate court held the daughter’s objection would violate a “no-contest” clause in her father’s will. This means she would be disinherited for challenging her brother’s efforts to enforce the will. As the California Court of Appeal explained in an order upholding the probate court, the daughter is effectively trying to frustrate the intent of her father’s estate plan by upholding her mother’s improper reliance on the original spousal property order.
Get Help With Your Estate Plan
The above case is merely an illustration and not a complete statement of California law. But it is still a useful illustration of how an estate plan may be delayed or defeated by an executor’s failure to adhere to the written terms of a will. That is why you should always work with an experienced California estate planning attorney who can help you avoid such pitfalls. Contact the Law Office of Scott C. Soady in San Diego today if you have any questions or concerns.