WILLS

Published on: March 12, 2016

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

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: February 19, 2016

Can You Make a Contract Not to Change Your Will?

by Scott C. Soady

If someone promises to include you in a will or estate plan, and do not for whatever reason, you generally have no legal recourse. An oral promise to take some future action is not, in and of itself, a legally binding commitment. However, if you have a written contract with someone regarding a future estate planning action, that may be enforceable in a California court. This is sometimes known a a “contract to make a will.” Like all contracts, there must be more than a unilateral promise: There must be an offer, acceptance, and consideration.

Handwritten Note Not Sufficient to Block New Will

Consider a recent California appeals court decision on this subject. This case is only an illustration and not a complete statement of California law. A father of five children signed a will in 2003. In 2004, following a dispute over the disposition of his late wife’s estate, three of the children met with their father, at which time he signed a handwritten document addressing the wife’s estate and further stating, “I am not revoking [my 2003 will] and the distribution to my children remain [sic] as written.” The 2003 will left the father’s estate to his five children in equal shares.

Published on: February 2, 2016

How Do You “Prove” a Will is Valid?

by Scott C. Soady

After your death, your will provides an estate planning roadmap for distributing your property to your chosen beneficiaries. You may be wondering how a probate court will know whether or not a particular document is actually your will. In other words, how does one go about proving a will is valid?

California, like all states, requires a will to be signed in the presence of at least two witnesses. The reason for this is to maximize the chance that at least one person—one of the witnesses—will be available to authenticate the will as valid should a dispute arise. Of course, since you may sign your will years (or decades) before your death, what happens if the witnesses are difficult to locate or unavailable?

One solution is to incorporate a “self-proving affidavit” into the will. This is a notarized document signed by the person making the will, together with the witnesses, in which they all affirm, under penalty of perjury, that the accompanying will is genuine. Most states will accept such an affidavit as proof of a will’s validity without the need for live witness testimony.

Published on: January 30, 2016

What Happens to My Estate Plan if My Child Dies Before Me?

by Scott C. Soady

No parent wants to contemplate losing a child. But from an estate planning perspective, you should anticipate how you wish to handle your own affairs in the event a child does not outlive you. Addressing these contingencies up front can help avoid misunderstandings after your death as to your wishes.

Per Stirpes Distribution

For example, suppose you are currently married and have three children. You sign a will that provides if you die and your spouse does not survive you, then your entire estate should be divided equally among your three children. Assuming all of your children are alive at the time of your death, it should be a relatively straightforward matter for the executor of your estate to gather your assets and divide them into three equal shares, one for each child.

Published on: December 7, 2015

Not Leaving a Will Can Leave Your Heirs Confused

by Scott C. Soady

It is never a good idea to avoid estate planning. While California law does provide for the distribution of estates without a will—that is, persons who die intestate—this often ends up costing your estate (and heirs) additional time and money. In addition, if you do not make a will, you forfeit any say over who will take responsibility for your assets as executor, which can lead to further delays in settling your affairs.

Lack of Will, Grandson’s Litigation Delays Distribution of Oakland Woman’s Estate

Intestate estate distributions can also be more complicated than you might think. Consider this recent California case, which is provided here merely as an illustration and not a complete statement of the law. The deceased in this case was an elderly woman who died without a will. She left one “significant asset,” her home in Oakland. One of the deceased’s granddaughters was named her personal representative of the estate. She apparently failed to perform her duties as personal representative, however, and four years later, the court named her attorney—who said he was “unable to reach his client”—as special administrator just to get a formal accounting of the estate filed.

Published on: October 19, 2015

Why Your Will Needs to Be Witnessed

by Scott C. Soady

Although you often hear stories about people contesting a will, it is not a simple process. Under California law, a person contesting a will has the burden of proving “lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” In contrast, the person offering the will for probate only has the burden of proving “due execution,” that is, that the purported will meets the formal requirements of California law. So in most cases, proper estate planning can thwart a will contest.

Surviving Witness Proves Will 14 Years Later

Like most states, California law requires a will be signed by the person making it (the testator) and two witnesses. The witnesses need not read the will or understand its contents. Their role is simply to witness the testator declare the document in question is, in fact, his or her will. The witnesses must then sign the will in the presence of the testator and each other.

One reason wills must be witnessed by two people is that in the event of a contest, at least one of them will hopefully be available to testify in court as to the authenticity of the document. Here is an illustration from a recent case in San Diego which is discussed here for informational purposes only and should not be taken as an accurate statement of the law. This actually involved a contest to a will nearly 14 years after the testator’s death.

Published on: August 17, 2015

Confusion Over Mother’s Estate Plan Leads to Siblings’ Court Battle

by Scott C. Soady

A mother of six adult children owned a home in San Luis Obispo County. She lived in the house with one of her sons and his wife. The couple, together with two of the other children, gave their mother money each month to help pay her mortgage.

In 2007, the mother signed a form will in the presence of an attorney. The will left the house to the son and daughter-in-law who lived with her. She simultaneously signed a deed transferring the house to the son while reserving a “life estate” for herself. This is a common estate planning device, but not usually favored given the problems that arise in this case. Basically, the mother became a “life tenant” of the house, and upon her death, the son would assume sole ownership.

Two years later, the relationship between the mother and her daughter-in-law deteriorated. The daughter-in-law told the mother she no longer owned the house and could be kicked out. At this point, three of the mother’s daughters arranged for her to meet with a new estate planning attorney. The daughters were aware of the 2007 will leaving the house to their brother, but not the deed conveying the property to him with a life estate for their mother. The mother told the new attorney she now wished to leave the house to one of her daughters. Accordingly, she signed a new will, together with a document giving her daughter power of attorney.

Published on: August 7, 2015

What Happens to My Business When I Die?

by Scott C. Soady

People often look at their estate plan in terms of purely personal assets-their house, bank accounts, etc. But your estate also includes any businesses you own or co-own. So what happens to these assets after you die? The answer to this question largely depends on how you choose to organize your business.

Sole Proprietorship

If you run a one-person business out of your house, it is likely a sole proprietorship. This means the business has no legal existence separate and apart from you. If you have a will, this means your sole proprietorship becomes the responsibility of your personal representative (executor), who may keep the business going for up to six months under California law. A probate judge may subsequently order the personal representative to continue the business for a longer period of time or wind it down.

Published on: August 4, 2015

California Supreme Court Says Judges May Consider Outside Evidence to Correct “Mistakes” in Wills

by Scott C. Soady

A last will and testament is supposed to express your wishes regarding the disposition of your estate. But sometimes a will is not clear about a testator’s wishes. If there is ambiguity in the language of a will, a California probate court may look to “extrinsic” evidence-facts or information outside the text of the will itself-in determining what the testator really meant.

That said, a court should not rewrite a person’s will to mean something it doesn’t actually say. For that reason, the California Supreme Court held in 1965 probate judges may not consider extrinsic evidence when interpreting an unambiguous will. In that case, Estate of Barnes, the testator’s will provided for the distribution of her estate to her husband, but he predeceased her. The will made no provision for such a scenario, and the Supreme Court said the probate court could not consider extrinsic evidence to ascertain the testator’s intent.

The Supreme Court Alters Course

Published on: June 15, 2015

Should I Write My Own Will?

by Scott C. Soady

A will is a formal document. California law requires a will be typewritten and signed by two competent witnesses. There are exceptions to this rule, but it is generally a bad idea to try and take advantage of them. A recent case from Arizona illustrates the potential pitfalls of trying to prepare your own will without the help of a qualified estate planning attorney.

Court Case in California

An Arizona woman died in 2012. The previous year, she began drafting a last will and testament on her computer. One of the beneficiaries named in the draft will was the woman’s natural granddaughter. The use of “natural” here is significant, because the granddaughter was actually adopted after her birth mother-the woman’s daughter-passed away. Grandmother and granddaughter later met and formed a close relationship.