San Diego Estate Planning Lawyer Blog
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.
Survivorship and Simultaneous Death
While the delay in the above example is uncommon, it is not unusual for one estate to have a vested interest in another estate. Even in a routine estate administration where there is no disagreement among heirs, it can still take several months to fully probate an estate. During this time, it is conceivable one or more heirs may themselves pass away, making their estates heirs or beneficiaries of the first estate.
There are also many cases where two or more people die simultaneously, say in a common accident. This can present significant challenges, especially when there is no reliable way to prove which person died first. For instance, if a husband and wife die in a car accident, does the wife inherit from the husband or vice versa?
One way to minimize the chance for such confusion is to include a survivorship clause in your will or trust. Also known as a “simultaneous death clause,” this basically says in order to inherit from your estate, a person must survive you by a certain number of days. Some states automatically impose a survivorship period (usually 120 hours or five days). California does not, so it is up to the person making the will or trust to make that determination. The typical survivorship clause is for around 45 to 60 days. Federal tax law discourages survivorship periods of more than 120 days.
But even with survivorship clauses, there will still be situations where an heir or beneficiary dies before receiving a distribution from another estate. This emphasizes the importance of estate planning. Your executor is responsible for gathering your assets after you die, which includes any inheritance not barred by a survivorship clause or similar provision. Similarly, you may wish to include language in your will or trust to prevent your estate from passing through someone else’s estate. Whatever your wishes, if you need to consult with an experienced California estate planning attorney on this or any related issue, contact the Law Office of Scott C. Soady in San Diego today.