Articles Posted in Wills

Typical situation.  An elderly mom with two adult children, Sally & John, passes away with a house full of nice personal belongings (furniture, antiques, crystal and jewelry).  Sister Sally lives with mom or in the same town and brother John lives 500 miles away. When mom passes, Sally notifies John but it takes him a couple of days to get into town for the funeral.  Meanwhile, Sally picks through the personal belongings and takes for herself what she wants and doesn’t tell John about it.

What actually should be done but rarely happens.  A Upon a death, the law requires that the deceased person’s personal property as well as money and real property be inventoried and accounted for.  Whether it is a probate situation or a living trust situation (i.e. no probate because of there being a trust in place), somebody needs to pay immediate attention to the personal property within a day or two.  It is a sad fact of life that I and nearly all other estate attorneys have observed that personal property often disappears without any trace unless steps are taken to preserve it.  In the ideal situation, the entire house including the personal property is photographed immediately and then detailed lists are made, room by room, of what is there.  Then, a personal property appraiser is hired to make a detailed listing of everything and appraise the values.  Few people realize it, but there are professional appraisers.  One resource is the American Society of Appraisers which can be found at http://www.appraisers.org/Disciplines/Personal-Property

What can be done to recover missing personal property?  The short answer to this is that very little if anything can be done.  This is the classic case of once the horse is out of the barn the remedies are few an ineffective. Theoretically, as in the example above, brother John can file a probate court petition against sister Sally but it is up to John and John’s attorneys to prove that Sally took the items in question.  Unless there are photographs or written evidence created very close to the mom’s passing, John can’t produce evidence to prove (a) what the missing items were and/or (b) that mom still owned them at her death or (c) that Sally took the missing items.  If John files against Sally she will typically deny any knowledge of anything.  If it were money missing, then bank records can be subpoenaed to prove what money was taken and whose account it went into.  Not so with personal property, unless the items are of significant value or are put up for sale in something observable such as Craig’s list.  Because mom’s personal property is not typically on people’s minds in mom’s last days, not a lot of care or record keeping is done to keep track of what there is.

A Will Can be Set Aside and Disregarded if a Court Finds that the Maker Lacked Testamentary Capacity

PRESUMPTION OF CAPACITY

Doctor & PatientCalifornia law presumes that everyone has the mental capacity to make a will.  Thus, if someone challenges a will in probate court for lack of mental capacity it is up to the challenger to prove lack of capacity with sufficient evidence.

CAPACITY TO MAKE A VALID WILL

A person must be at least 18 years old and of sound mind to make a will. A person is not mentally competent to make a will if at the time of making the will (i) he or she does not understand the nature of the testamentary act, (ii) does not understand and recollect the nature and situation of his or her property, (iii) and does not remember or understand his or her relations to living descendants, spouse, parents, and those whose interests are affected by the will.  Also a person is not mentally competent to make a will if he or she suffers from a mental disorder with symptoms including delusions or hallucinations, which result in his or her devising property in the will in a way which except for the existence of the delusions or hallucinations he or she would not have done.

CHALLENGING THE VALIDITY OF A WILL

CHALLENGING THE VALIDITY OF A WILL

California law provides for three methods of contesting a will on grounds of lack of capacity. The location for decision is the probate court. The starting point of a probate proceeding is for an interested person, typically the named executor, to file the will with the court as part of a petition to probate the will and the estate. Un- less there are timely objections, the will is admitted to probate and the right to challenge will be lost. The first method to contest the will would be to file an objection to the petition for probate before it comes up for hearing. The second method would be to file a petition to revoke the probate within 120 days after the will is admitted to probate.  The last way which is seldom used is to file a complaint in intervention.  There are many technical rules and time deadlines involving will contests so you will need to consult with skilled legal counsel to make a valid challenge.

How did that kid get so much money to blow!

18 is the age of majority

When a child turns 18 years he or she is considered to be an adult under California law. In legal terms, children under age 18 are called “minors” and when they reach age 18 they are called “adults”. Minors and adults are treated differently as far as inheritance rights are concerned. Minors still have rights to inherit but any inheritance which comes to them is subject to certain legal controls because the law presumes that minors are not capable of handling money or property as well as adults.

Inheritance can occur in 3 typical ways

Inheritance Rights For Children – Minors can inherit money or property in the following types of situations:

  1. where a family member dies and does not leave a will (also called intestate succession);
  2. where somebody dies leaving a will which gifts money or property to a minor (also called intestate succession);
  3. and where trust is established naming a minor as a trust beneficiary.

The minors inheritance is handled differently in each of these situations.

Image of young caregiver assisting woman from car.

Wills benefiting the attorney or caregiver are suspect

Abuses in formation of wills and trusts

In California over the last few decades there have been some situations whereby attorneys or caregivers have had wills or trusts prepared that benefit them. There was a famous case of a 95-year-old lady whose will left the bulk of her fortune to the people taking care of her. It turns out that the people taking care of her, known as “care custodians” had the will prepared under suspicious circumstances such that the 95-year-old lady probably didn’t know what she was signing. This and other similar situations led to recent legislation to correct abuses.

Fraud or undue influence as grounds to set aside a will or trust

The law has always been that if it is proven that a will or trust was entered into under fraudulent circumstances or under undue influence that it could be set aside.  An example of a fraudulent will or trust is one where the signature of the will maker or trust maker is a forgery or that the signature was obtained by making false representations to the signer as to what the document was. An example of undue influence would be where the person making a will or the trust was in effect held prisoner by the people who prepared the will or trust and was forced to sign. Before the new law to prevent these abuses, a will or trust could still be set aside in a court proceeding but first the people seeking to set aside the document would have to prove by a preponderance of the evidence that there was fraud or undue influence.

Cut out the heirs who challenge the will using No Contest Clauses

Challenges can occur

Image of a courtroom doorIf a will or a trust does not make an equal division of the estate then an unhappy heir might want to make a challenge. The law does not require you to equally divide your estate equally amongst your children or to give anything to them for that matter. Most children or in some instances brothers or sisters where there are no children feel that they are entitled to an inheritance. Not everybody understands or believes that a person making a will or trust can leave his or her assets to anyone. This has led to litigation challenging the provisions of the will or trust.

No contest clauses

“No contest clauses” are paragraphs written into wills or trusts which state that any person who challenges they will or trust or its provisions is penalized by being left with nothing. No contest clauses have been valid under California law for over 100 years. The concept of a no contest clause is to prevent litigation and get the heirs to accept what the maker of the will or trust decided. If everything could be second-guessed by litigation then the courts could be clogged. The state legislature has adopted comprehensive laws pertaining to no contest clauses. Further, there is a split in the law which treats no contest clauses in instruments that became irrevocable before January 1, 2001 differently from instruments which became irrevocable after January 1, 2001. This makes situations involving no contest clauses and their enforcement more entangled. Even so, most wills and trusts do contain no contest clauses as people feel they are worthwhile to put in.

Grounds for contest

A “contest” means a court pleading (typically a probate court petition which is the equivalent of a lawsuit) filed by a beneficiary that would result in a penalty under a no contest clause. A direct contest is where the court pleading seeks to revoke or make invalid a will or trust on account of either a forgery, lack of proper execution, lack of mental capacity, or circumstances involving menace, duress, fraud, or undue influence. Under the new law which applies to instruments which became irrevocable after January 1, 2001, a no contest clause shall be enforced only where the contest is brought without “probable cause”.

How Often Should You do an Estate Plan Review?

Outdated Estate Plan, Trust or Will

Outdated Estate Plan?
An Estate Plan Review Helps You Deal with Life Changes

Once you have your estate plan drafted and and your selected assets funded into your Revocable Living Trust, you can’t simply throw your estate planning documents into a drawer and forget about them.

If some years have passed since you funded your Trust, or signed all the various Estate Planning documents, there may have been changes in the laws coupled with critical changes in yours’ and your loved one’s life circumstances. That means that your estate plan is now out of date and out of tune with the realities of your life situation. An estate plan review or trust review is needed. Your estate plan might need a legal tune-up.

OMG !!! – I got married and forgot to change my will to add my new wife!

Will Definition

Wills – What if Your Spouse is Omitted ?What if Your Spouse is Omitted – A Will is a written document which states to whom a person’s belongings, money and property are to be given upon death.   A Will is typically effective upon a person’s death and can be changed or replaced any time as long as the Will maker is mentally competent.  People who die without wills are said to die “intestate” so their money and property passes under the laws of intestacy.  Refer to my blog on “passing without any will.”

With a will and with trusts, there is a distinction between separate and community property.  The law regarding wills and trusts and divorces involves classifying property as “separate property” (what you had before you married or what you inherit) and “community property” (what you acquire during marriage from working and investing community funds).  Each person has a legal right to make a will or trust giving instructions about what to do upon death of his or her separate property and his or her half of the community property.  Community property is by definition owned ½ by the husband and ½ by the wife.

You can will your property to whomever you want

Thus, there is no law that a wife has to leave her separate property and her portion of community property to her husband and vice versa.  The maker of the will chooses to whom his or her property is to be given.

OMG !!! I forgot to name a loved one in my will!

Will Definition

A Will is a written document which states to whom a person’s belongings, money and property are to be given upon death. A Will is typically effective upon a person’s death and can be changed or replaced any time as long as the Will maker is mentally competent.  People who die without wills are said to die “intestate” so their money and property passes under the laws of intestacy.  Refer to my blog on “passing without any will.”

With a will, there are various laws that determine who gets what

The will doesn’t necessarily cover the situation if a child is born after the will is signed or if you forget to name someone alive at the date the will is signed or if you have a child out of wedlock or if you don’t even know the child exists or if a child is posthumously conceived.  Each situation has its own legal rules so the estate planning attorney has to explain this to you and determine how to word your will and/or your trust to carry out your intentions.

Pretermitted heir concept addresses Omitted Children

Newest child omitted from Will?Basically, the law presumes that a child born or adopted after you sign your will will receive a share of the estate as if he were actually named.  Thus, any child born after the will is signed (i.e. omitted children) is included as an heir to the estate.  There are exceptions to that rule which we normally write in to wills we draft.  The major exception is to have the will state that ONLY the persons named are to share in the estate and that all others are intentionally omitted.  This would cut off children born out of wedlock.  Another exception is where there is evidence that the will maker provided for the omitted child by making transfers outside of the estate.  A good example is the gift of property or a bank account with a letter of intent signed by the will maker stating that the gift is in lieu of being included in the Will.

Please Don’t become a participant in a lost Will disaster

Will Definition

Can't Find WIllA Will is a written document which states to whom a person’s belongings, money and property are to be given upon death. A Will is typically effective upon a person’s death.

Original Will

A valid will may either be typed or handwritten (holographic). The original signed Will is necessary in general to be able to open a Probate Court proceeding to administer a deceased person’s estate and get legal Court authority to distribute the assets.

Potential disaster

Supposing a person made a Will but the Will was lost. That can be a disaster if the Will maker has died. If the Will maker is alive, he/she can simply make another Will and that would supersede the prior lost will if it is properly prepared. If the Will maker has died then there may be no way of knowing how the Will maker wanted his/her estate distributed. That could be disastrous to people who were named as heirs in the Will. If there is no Will or provable copy then the money and property would have to be distributed according to the laws of intestate succession. If there is no provable Will, then the law presumes that the Will maker intentionally destroyed the Will.

Passing Without Any Will should be avoided at all costs

Will Definition

No Will FoundA Will is a written document which states to whom a person’s belongings, money and property are to be given upon death. A Will is typically effective upon a person’s death. A valid will may either be typed or handwritten (holographic).

Intestate

Where a person dies without a Will, he/she is said to be “intestate”.

Community property and separate property

Under California law, money and property is categorized for death and divorce purposes as community property or separate property. The category type is vital to determine where the estate of an intestate person will go.

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