Articles Posted in WILLS

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A person is free to dispose of property as he or she wishes by making a will. There are cases in which a person may enter into a written contract to make certain provisions in their will in exchange for certain considerations. For example, a father may promise to make a will leaving his house to his daughter. In exchange, the daughter agrees to move in with her father and take care of him in his final years.

Court Rejects Breach of Contract Claim Due to Late Filing

When there is an offer, acceptance, and consideration, a contract to make a will is legally binding in California. This means if the person who promises to make the will fails to do so before he or she dies, the other party may have grounds to file a breach of contract lawsuit. Under California law, such lawsuits must be filed within one year of the decedent’s death.

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Estate planning is a process that affects your entire family. The decisions you make today regarding your will and trust can affect your spouse, children, and other relatives years down the line. This is why it is important to make sure your family is aware of your estate planning intentions.

52% of Americans Have No Will

BMO Wealth Management, an international bank based in Montreal, recently released the results of a survey it conducted of 1,008 American adults about their attitudes towards estate planning issues. The report, called “Estate Planning for Complex Family Dynamics,” offers some interesting insights into how the average American views the estate planning process, in particular how they responded to their own experience with inheritances.

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If you are married or in a long-term relationship, your estate plan will likely name your partner as the principal beneficiary under your will or trust. But what if you both die in a common accident? The law in this area can get a little complicated.

California’s 120-Hour Rule

When a California resident dies without a will, the state’s intestacy law dictates the distribution of property. If you have a surviving spouse but no children, the spouse automatically inherits everything. If you have children, your spouse inherits all of your community property and splits any separate property with the children.

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The legal requirements for making a valid will in California are straightforward. A will should be in writing and signed by the testator (the person making the will) in the presence of at least two witnesses. Ideally the will is typewritten and signed on the last page. Many estate planning lawyers will also have their clients and the witnesses initial each page of the will, just to make sure there is no doubt as to the authenticity of the entire document.

Alaska Follows California’s Lead on Signature of Handwritten Wills

Most modern wills are typewritten, usually by the office of an experienced estate planning attorney who specializes in preparing such documents. Still, some people decide to write their own wills. Such documents often do not conform with the witnessing requirements of California law. Does that mean these wills are invalid?

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Some people decide to write their own last will and testament without the assistance of an estate planning lawyer. While such wills are generally valid, provided they comply with the requirements of California law, there is always the risk that ambiguity in a will drafted by a non-attorney may lead to misunderstandings. Such misunderstandings can lead to litigation, which largely defeats the purpose of having a will in the first place.

Handwritten Will Leads to Lawsuit Over Woman’s Intentions

A recent South Dakota case illustrates the types of problems that may arise from self-drafted wills. The will in this case was written by a woman who was serving a jail term at a South Dakota women’s prison. The will was “holographic,” meaning it was handwritten by the woman. Holographic wills are considered valid in most states provided they are signed and in the testator’s own handwriting.

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Many parents do not get along with their children. It is an unfortunate reality, but in the context of estate planning, there is nothing that compels a parent to leave any of his or her property to an adult child. Nor is a poor parent-child relationship, in and of itself, evidence of a mental disability or a sign that the parent was not in his right mind when he excluded a child from his will.

Bad Relationship With Children is Not Evidence of “Delusion”

A recent California appeals court decision helps illustrate this point. This is an unpublished decision, so it is not considered binding precedent, but the case explains the law in this area. The case involves a 79-year-old man who died in 2011.

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There are many stories about people who make unusual bequests in their last will and testament. Perhaps the strangest story involved a wealthy Portuguese aristocrat who passed away several years ago at the age of 42. The man was unmarried and had no children. But he did leave a will, which named 70 different people to share in the proceeds of his estate.

What made the will unique was that the 70 people were complete strangers. According to a 2007 BBC report, the man sat in the presence of two witnesses and selected the 70 beneficiaries “at random” from a local telephone directory. These individuals had no idea they were the man’s beneficiaries until they were contacted after his death.

American vs. European Rules Governing Heirship

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Administering a California probate estate is often a time-consuming affair. The personal representative (or executor) of your estate is responsible for gathering and maintaining all of your assets, paying any legitimate creditor claims, and ultimately ensuring all property is distributed according to the terms of your last will and testament. Depending on the size and complexity of your estate, the personal representative may end up spending up hundreds of yours settling your affairs.

How California Sets Compensation Levels

For this reason, California law recognizes the personal representative’s right to receive compensation for his or her services. The maximum allowable compensation for “ordinary services” is determined as a percentage of the total value of the estate. For estates valued at $100,000 or below, the personal representative’s compensation cannot exceed 4%. This means that, for instance, if you leave a probate estate worth $80,000, your personal representative cannot receive more than $3,200 in compensation.

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Estate planning can seem like an unnecessarily complicated process. But there are ways to simplify matters. After all, the whole point of estate planning is to facilitate the transfer of assets from the deceased person to the chosen beneficiaries—and this does not always require a will or formal trust document.

Totten Trust vs. Payable-on-Death Account

In the early 20th century, courts began to recognize something known as a “Totten trust.” Also called a “bank account trust” or sometimes a “poor man’s trust,” a Totten trust is nothing more than a bank account opened by a depositor in his or her own name as trustee for a beneficiary. The depositor is free to withdraw funds or even close the account during his or her lifetime. Any funds remaining in the account at the time of the depositor’s death are then paid over to the beneficiary.

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One issue that comes up when making a will is whether to require your designated personal representative (a/k/a executor) to post a bond. California law requires any personal representative to post bond as a condition of his or her appointment. The purpose of the bond is to protect the interested persons in your estate, i.e. the beneficiaries named in your will. The personal representative’s job, after all, is to ensure your beneficiaries receive their inheritance. The bond helps insure against an unscrupulous personal representative who misappropriates estate property for some other purpose.

Of course, you can choose to waive the state’s bond requirement in your will. In fact, many people do just that given that their chosen executor is usually someone they trust, such as a spouse or child. In cases where the deceased did not leave a will, the beneficiaries of the estate may also choose to waive the bond requirement by written notice to the probate court.

Requiring a Bond After Administrator Fails to Account for Funds

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