Articles Posted in WILLS

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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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It is always a good idea to make a will. Although the law of intestacy provides for the distribution of your assets if you die without leaving a will, making a will (or trust) allows you to decide who should inherit from your estate. This can be especially important if you are married but have children from a prior marriage. In California, the law of community property can result in those children receiving little or nothing if you fail to leave a will.

Stewart-Williams v. Williams

Here is a recent example from a California Court of Appeal decision. This should not be construed as legal advice or a complete statement of California law on this subject. This is merely a case illustrating how the probate courts deal with community property of a deceased individual who does not have a will.

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While real estate and cash are the first assets you might think about in connection with estate planning, you should not neglect your stock portfolio. According to a 2015 Gallup poll, approximately 55% of Americans have money invested in the stock market. The law in California and many other states offers a process for transferring your stock without having to go through a formal probate process.

What is a TOD Registration?

Although stock offerings are regulated by the federal government through the U.S. Securities and Exchange Commission, the actual registration of stock ownership is handled under state law. And just about every state has adopted the Uniform TOD Security Registration Act. The “TOD” stands for “transfer on death.”

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Signing a last will and testament is often not a one-time affair. You may in fact execute several wills over the course of your lifetime. While a “last” will usually refers to the document signed most recently before your death, there are occasions when a California probate court may find good cause to admit an earlier will.

Judge Nullifies Will Favoring Stepdaughter Over Biological Children

For example, in a recent case from Los Angeles, a state appeals court upheld a probate judge’s decision to admit a decedent’s next-to-last will over his last will. The probate court found the last will was the product of undue influence but the previous will was not. The court therefore admitted that will to probate over the objections of the decedent’s children.

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Recently a California appeals court faced an unusual situation. A woman wanted to reopen her late husband’s estate nearly 25 years after his death. The widow claimed there was a “clerical error” in the original probate court order that led to the unintentional omission of her children from a prior marriage—that is, her husband’s stepchildren—from inheriting part of his estate.

Under the husband’s will certain property, notably three pieces of real estate, was placed with the wife in trust. As long as the wife remains alive, she receives all of the income from the trust property. Upon her death, according to the will, “the trust estate would be distributed in equal shares to each of decedent’s children then living and each group of issue of a deceased child.”

The wife served as personal representative of her husband’s estate. She apparently did not retain a probate lawyer to assist her. In 1992, she filed a petition to approve the distribution of estate property according to the terms of the will. The final order approved by the probate judge only included the husband’s children as “children” entitled to inherit under the will. But as it turned out, there was language in the will that included the wife’s children, the husband’s stepchildren, as intended beneficiaries of the trust.

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The recent death of Prince Rogers Nelson sparked a great deal of interest in estate planning circles when it became known that the famous musician, commonly known by just his first name of “Prince,” apparently did not leave a last will and testament. Nelson was also unmarried and had no surviving children at the time of his death. This has led to concerns that his siblings—and perhaps individuals claiming to be his siblings—will fight over the final disposal of Nelson’s sizable estate in a Minnesota probate court.

What Happens When You Die Without a Will?

In legal terms, a person who dies without a will is said to die intestate. When this happens, the probate law of the state where the estate is opened—generally the residence of the deceased—dictates the order of inheritance. For example, under California’s intestacy law, if a person dies without a spouse, child, or surviving parent, his entire estate would be equally divided among his siblings.

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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.

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As a general rule, you have the right to dispose of your property in a last will and testament as you see fit. For example, you could choose to disinherit one or all of your adult children. You can also make gifts to individuals and institutions subject to certain conditions, such as requiring a college to use your bequest for a certain program. Such conditional gifts are sometimes referred to as “Dead Hand Control,” as the person making the will is effectively trying to exercise ongoing control of his or her property even after death.

Canadian Court Rejects Racist, Homophobic Gifts

But there are limits on Dead Hand Control. Courts can refuse to enforce a conditional gift or bequest in a will if it violates “public policy.” What exactly does that mean? For one thing, you cannot condition a gift on the beneficiary committing an illegal act.

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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.”

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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.

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