PROBATE

Published on: April 29, 2016

What is My Estate Actually Worth?

An “estate” does not necessarily include all of a person’s assets. In the context of estate planning, an estate refers to property subject to distribution under a person’s last will and testament—that is to say, their probate estate. This may exclude some or all of a person’s property depending on its type and ownership.

Assets That are Not in Your California Probate Estate

For example, any assets that you jointly own with someone else are not part of your probate estate. This would include a joint bank account or a house you co-own as a joint tenant. Upon your death, the surviving co-owner simply assumes full ownership of the asset. Your probate estate also excludes any life insurance policy or asset payable to someone else upon your death, such as a retirement account. And for purposes of determining your California probate estate, any real property that you own in another state—say a rental property in Arizona—is excluded.

Published on: April 25, 2016

How a California Power of Attorney Works

by Scott C. Soady

A power of attorney is a document authorizing someone to act on your behalf with respect to financial and contractual matters. Among other acts, a person holding your power of attorney may sell your house, write checks from your bank account, or access your safe deposit box. A power of attorney is “durable,” meaning it continues in effect until you revoke it. Your death would also terminate any outstanding power of attorney.

Daughter Improperly Delegates Father’s Power of Attorney

There are limits to what a person may do under a power of attorney. Here is one illustration from a recent California appeals court decision. This is only an example and should not be construed as a complete statement of California law on the subject of powers of attorney.

Published on: April 23, 2016

Can My Estate Sue the Persons Responsible for My Death?

by Scott C. Soady

Estate planning is not just about disposing of what you have now, but also dealing with any unresolved legal claims that may exist at the time of your death. For example, if you have filed a civil lawsuit against someone, that case does not automatically end just because you die. The personal representative of your estate can continue the lawsuit on your behalf.

Survivorship Claims

There are also potential legal claims that may arise due to the circumstances of your death. Two common examples are car accidents and medical malpractice. If a person dies due to the negligence of another, the estate may pursue what is known as a survivorship claim. This allows the estate to seek compensation for its own expenses—the costs of the decedent’s funeral, medical expenses, etc. —with the balance of any potential judgment reserved for the beneficiaries named in the decedent’s trust or last will and testament.

Published on: April 22, 2016

Is Favoring a Relative in Your Estate Plan Proof of Elder Abuse?

by Scott C. Soady

It is an unfortunate reality that many people take advantage of the elderly and the mentally infirm. California has laws to prevent such elder financial abuse. Among other things, the law prohibits “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” For example, pressuring an elderly woman with dementia to sign a last will and testament naming a particular individual as the sole beneficiary of her estate could be considered elder financial abuse.

Court Rejects Daughter’s Allegations Against Nephew

But just because an elderly person may not be as sharp as they once were, that does not mean he or she is a victim of elder financial abuse. Nor does it necessarily defeat any estate plan the elderly person might have made. A recent California case helps illustrate this point.

Published on: April 9, 2016

Writing Your Own Will Can Lead to Legal Problems

by Scott C. Soady

There are many reasons why it is a bad idea to write your own will. For one thing, you may not be familiar with the proper usage of certain legal terms, which can lead you to write something that may be interpreted in a completely different manner by a probate court. A recent California case illustrates how even a single word can spark years of unnecessary litigation after your death.

Heir vs. Beneficiary

This case is only an illustration and is not a definitive statement of California law. This case actually involves two estates—that of a mother and her son. The mother died in 1992. She left a handwritten, four-paragraph will naming her son “as sole heir and executor to manage estate affairs.”

Published on: April 8, 2016

What Happens When My Business Plan Conflicts With My Estate Plan?

by Scott C. Soady

Estate planning can get complicated when you own your own business, especially if you have one or more partners. You need to take care that your personal estate planning—your will or trust—does not conflict with any documents governing your business relationships. Such conflicts can create significant legal and tax issues after your death.

Business Partner’s Objections Hold Up Administration of Trust

A recent case decided by a Los Angeles appeals court offers a helpful illustration. Two men formed a real estate management company in 1969. The company is a holding vehicle for nearly two dozen other corporate entities. The agreements between the two men apparently provided that one could not transfer his interest in the business without the consent of the other.

Published on: April 2, 2016

Is My Will a Matter of Public Record?

by Scott C. Soady

Privacy is always an important consideration when it comes to family and financial matters. This includes estate planning. For example, you may not want the general public—or even certain family members—to know about the specifics of your estate and how you choose to distribute it.

Famously Reclusive Author’s Will Sealed by Court Order

The well-known American author Harper Lee, who wrote To Kill a Mockingbird and its 2015 sequel, Go Set a Watchman, was famous for maintaining her privacy. The publication of Watchman more than five decades after Mockingbird was considered a major literary event. Lee died in February, 2016.

Published on: March 31, 2016

What Happens to My Fiancée If I Die Before We Marry?

by Scott C. Soady

Although a last will and testament remains valid indefinitely, you should still review your estate planning every few years to account for changes in your life. Leaving a will unchanged for many years may lead to a situation where someone close to you is unintentionally omitted from receiving a share of your estate. Conversely, there may be situations in which you wish to exclude someone provided for in an earlier will.

Ex-Mayor’s Fiancée Left Out of Will

Earlier this year the longtime former mayor of Providence, Rhode Island, Vincent A. “Buddy” Cianci, passed away at the age of 74. Cianci held the mayor’s office for more than 20 years before he was convicted of federal corruption charges in 2002 and sentenced to 10 years in prison. Just before entering prison, Cianci signed a last will and testament.

Published on: March 12, 2016

Does My Will “Expire” After a Certain Number of Years?

by Scott C. Soady

Estate planning should not be a one-time event. As your life, family, and financial situation changes, you should periodically revisit and revise your estate plan accordingly. That said, it is important to understand that a will does not come with an “expiration” date. If you sign a will today and leave it untouched for the next 50 years, that same will is still legal and admissible before a California probate court.

Probate Court Admits 50-Year-Old Will

For example, a California appeals court recently upheld the admission of a will signed in 1965 by a person who died in 2012, some 47 years later. The deceased was a married woman who had separated from her husband some months prior to her death. The husband, believing his wife had died without leaving will, asked a probate court to appoint him as administrator of her estate.

Published on: March 4, 2016

How Does a Prenup Affect My Estate Planning?

by Scott C. Soady

Many couples sign a prenuptial (or antenuptial) agreement prior to marriage, which specifies the rights of each partner in the event of divorce or death. It is important to treat such agreements as part of your estate planning, as in many cases a prenup may amend or override a spouse’s potential inheritance rights under California law. Once the other partner has died, it is generally too late for the surviving spouse to do anything about it.

Court Finds Wife Waived Community Property, Inheritance Rights

Here is a recent example from a case in Merced County, California. This litigation involves a dispute between the wife of a deceased husband and her stepson (his child from a prior marriage). The husband and wife married in 1990. The day before their wedding the couple signed an antenuptial agreement drafted by the wife’s attorney.