California Estate Lawyer Blog

So there we have it ... my client is listed on a deed with his two siblings and his mother as a joint tenants with right of survivorship (see California Civil Code §683 at http://www.leginfo.ca.gov). In such a case, the survivors are said to take title by operation of law.

The joint tenancy deed creates the rights in the property. By including a survivorship right, any other joint tenant alive when another joint tenant dies takes the deceased joint tenant's share. In this case, there were four joint tenants. One died. Each joint tenant went from owning an undivided 25% interest in the real property to an undivided 1/3 interest in the real property.

The way the property is transferred when there has been a death is to record a document entitled "Affidavit Death of Joint Tenant". A certified copy of the death certificate is attached to the Affidavit. Anyone can sign the Affidavit; so long as the joint tenant has really died (ergo the requirement for a certified copy of the death certificate to be recorded with the Affidavit). Upon recording, the other joint tenants own the property exclusively, no probate required by anyone (see California Probate Code §210 at http://www.leginfo.ca.gov)

And that's the point, isn't it? A disinheritance clause in a will controls who will benefit from a probate. Since the joint tenancy with right of survivorship property is not subject to probate (by operation of law, remember?), the disinheritance clause does not apply and my client took his share of the real property. The moral of the story is that if you intend to disinherit someone, you better not own real property jointly with them.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Co-Ownership , Disinheritance , Real Property , Wills

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As I stated in my last post, my client's mother had a will when she died; in the will was a disinheritance clause that disinherited my client. In this post I will describe how those clauses are dealt with in California.

In general, a child of a dead parent is entitled to a share of the estate of that deceased parent if the child can prove that the failure of the dead parent to name the child as a beneficiary in that dead parent's will or trust was due to the dead parent's mistaken belief that the child was dead when the will or trust was signed or that the child was born after the death of the parent (California Probate Code §21622). In addition, spouses and children who came into the deceased person's family after the execution of the will or trust are also entitled to receive shares of the estate. The California Probate Code Statutes that address this latter issue are found at California Probate Code §21610 (surviving spouse who married the deceased after the date of execution of the will or trust) and California Probate Code §21620 (child born or adopted after the date of the will or trust).

The exception to the foregoing statutes are express terms in the will or revocable trust that state the intent of the deceased that the child or spouse not take anything from the dead parent or dead spouse's estate (California Probate Code §§21611, 21621). What this means is that YES you can be disinherited in California, and that is exactly what happened to my client by virtue of the expressed intent in my client's mother's will. My client was known to his mother at the time that she wrote her will and she expressly disinherited him.

But the story does not stop here ... there is the issue of the residence that he owned with his mother and siblings as a joint tenant with right of survivorship. How the disinheritance clause effected that situation will be the topic of my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Disinheritance , Wills

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As I have said previously, greed is an incredible motivating factor in creating family discord; in this Orange County case, my client's mother disinherited him in her will (California Probate Code §88). However, she had also, years before, transferred her home into co-ownership with her three children (including my client). In this case, the form of co-ownership was as "joint tenants with right of survivorship" (California Civil Code §683). The issue was whether the will would control who took the home (along with some other issues that I will address later).

A valid will in California can take several forms; one is called a "holographic" will (California Probate Code §6111). That is a will that is handwritten by the testator (i.e. the person who's will it is), dated and signed by that person. In such a circumstance, the normal requirement for witnesses is waived and such a will can be submitted for probate (California Probate Code §8000 ) in the Superior Court.

Another form of will is the one that an attorney might prepare for a client. It is type-written, it sets forth various declarations concerning the testator and family relationships, and it instructs the person named as the personal representative (California Probate Code §58) of the testator as to what is to be done with the testator's property after death. To be valid, the signing of the will by the testator must be witnessed (California Probate Code §6110) by at least two disinterested witnesses (California Probate Code §6112).

In the case at hand, my client's mother had died leaving a witnessed will that contained a disinheritance clause. I will go in to what the disinheritance clause said my my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Co-Ownership , Disinheritance , Real Property , Wills

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Previously I told how the court determined that the single family residence owned by my client and her brother would be sold, as it could not be divided, all in accordance with California Code of Civil Procedure §872.820. How the property was sold is what I will describe in this post.

The court determined that the single family residence would be sold by a public sale (California Code of Civil Procedure §873.520). Notice of the sale was provided in accordance with California Code of Civil Procedure §873.640. The court decided that it would conduct the sale as an auction in court on a date and time specified in the notice.

The big day arrived; I was in court with no less than eight bidders who wanted to purchase the single family residence. The court ran the auction just like you would think; starting with a minimum, taking overbids, until there was only one bidder left, to whom the judge sold the property.

Guess who? My client's brother. It seemed that he just could not bear to part with the residence, despite the fact that he could have bought out my client's half -interest for substantially less than what he paid ....

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Co-Ownership , Partition Litigation , Real Property , Trial

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So here was the situation; my client and her brother owned their mother's residence as tenants in common (California Civil Code §686). My client's brother did not agree with the appraisal that was made of the residence and refused to buy-out my client. Since it is impractical to divide a single family residence in two, my only alternative was to bring an action for partition (California Code of Civil Procedure §872.230) against my client's brother, requesting that the court order the sale of the real property (California Code of Civil Procedure §872.820).

I filed the lawsuit in Superior Court of Los Angeles County North East District (in Pasadena), because the residence was within that district's boundaries. I served the summons and complaint (California Code of Civil Procedure §413.10) on my client's brother. He responded within the thirty day time period allowed for responses to service of a summons and complaint. His responses (technically referred to as an "answer") basically said that he did not want the residence sold, although it was my client's right to do so.

The matter was set for hearing. I intended to call my client and the appraiser as witnesses. My client's brother, who was representing himself, intended to call my client and provide his own testimony.

I won't go into the trial specifics; suffice it to say that my client prevailed and the residence was ordered sold by the court; how it was sold, however, I will relate in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Co-Ownership , Partition Litigation , Real Property , Trial

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In my last post, I described how my client and her brother came to own, as tenants in common (California Civil Code §686), the single family residence of their mother. My client wanted her mother's home to be sold; her brother did not. Pursuant to my recommendation, my client authorized me to file a complaint for partition (California Code of Civil Procedure §872.230) in Superior Court of Los Angeles County Northeast District (which is where the residence was located).

Generally speaking, when real property is owned by two people as tenants in common, each person has an undivided and equal interest in the real property. The problem arises when the only improvement on the real property is a single family residence. You cannot, as a practical matter, divide up such an improvement to the real property. What can be done is that one co-tenant can buy the other out (if they can agree on a price) or a co-tenant can seek court intervention to have the real property sold to the highest bidder (this is called "partition by sale" in accordance with California Code of Civil Procedure §872.820).

In this case, I hired an appraiser to value the single family residence; I communicated that value to the other side and suggested that my client would be willing to pay one-half of that amount to acquire her brother's interest in the property or alternatively, my client would accept that amount for her interest. The problem was that my client's brother did not agree with the appraisal.

In my next post, I will describe how this case went forward.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Co-Ownership , Partition Litigation , Real Property

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Every now and then I receive calls from clients where the resolution of their problem would at first appear to be a trip to probate court, but sometimes has a twist that takes me to the world of civil litigation.

In this case, my client told me that she needed to sell her mother's residence to pay for bills she had received for her mother's nursing home care. No problem I said; do you have power of attorney for your mother (California Probate Code §4022) that would allow you to sell the residence? No. Is she competent (California Probate Code §812) to give you a power of attorney? No. Should we consider establishing a conservatorship (California Probate Code §1801), with you as the conservator, and then sell the property? No. Well, if the answer to all the foregoing is no, when did your mother die? She's not dead; my mother gifted the residence to my brother and me and he does not want to sell it. Oh .....

So being much wiser now, I asked how is title to the residence held... my client said that it was held as tenants in common (California Civil Code §686) with her brother. The solution: I recommended that my client consider a partition action (a means by which co-owners of property can divide it or sell it under court supervision), that would result in the house being sold so that she would have funds for her mother's nursing care.

More about that in the next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Co-Ownership , Partition Litigation , Real Property

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As I stated in my last post, my client's half-sister disputed whether my client and the half-sister were even related; DNA tissue was found at a hospital where my client's natural father had been treated for cancer. The results from the DNA laboratory came back and, as expected, the half-sisters had the same natural father. Now that the DNA issue had been done away with, I could concentrate on the trial.

Trial was scheduled for Superior Court of Los Angeles County Northeast District (Pasadena) in a few weeks. The issue to be resolved at trial was whether my client qualified as an heir under California Probate Code §6451. The other side argued that my client had never lived with her natural father as parent and child; I argued that the "at any time" language in the statute meant just that (i.e. a literal interpretation), at any time (meaning overnight visits with the natural mother while my client was an infant should count).

The other side blinked ... counsel for my client's half-sister called to make a deal.
This is not unusual, given the uncertainty associated with the outcome of trials (there is no such thing as a "slam-dunk" case in my experience; if there was, there would be no dispute). I made a demand on behalf of my client, the other side countered, and so it went until a number had been reached that was satisfactory to my client.

By the way, I don't recall who told this to me, but I was told and have often said that the definition of a compromise is when both parties walk away equally unhappy at the result. In this case, I would have to say that my client was happy; the money was paid, the case was dismissed, and life went on.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Trial

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Recall that my client's half-sister now claims that they are not related ... and counsel and I agreed to use a DNA laboratory to determine the likelihood of relationship. Problem: the presumed natural father is dead and was cremated ... where does my client get a sample of his DNA?

Like most everywhere that I had ever heard of, a death certificate is issued in California for every person that dies. The death certificate is signed by a treating physician, if the person had one before dying. In this case, the natural father died of lung cancer. I had a death certificate, therefore I could track down the doctor. Once I located him, I served him with a subpoena (pursuant to the discovery available to me in litigation California Code of Civil Procedure §2020.410) to produce any DNA material that he might have from the natural father. I also served a notice to produce (California Code of Civil Procedure §2031.010) DNA material on my client's half-sister, thinking that perhaps there was a comb with hairs on it.

No luck... neither witness nor party had any DNA. I kept looking. I discovered that the natural father had received some treatments at Cedar-Sinai Medical Center in Los Angeles. After serving a subpoena on the hospital's pathology lab, they acknowledged having biopsy tissue that could be used for DNA sampling.

In my next post I will detail what happened and how the case was resolved ...

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Discovery , Intestacy

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So here is my client, fighting her half-sister in Superior Court of Los Angeles County North East District, over whether she qualifies an heir of her natural father's estate under California Probate Code §6451 because she had been adopted away as an infant. I am interviewing witnesses, gathering evidence, and opposing counsel drops this one on me ...

Essentially, he says that he is going to claim on behalf of his client that my client's mother was a "loose" woman and maybe my client is not truly an heir of her dead father, because maybe he wasn't the natural father of my client after all ... Forget that they looked alike, shared common birth marks, and that he told her he was her father, just accept that he could have been mistaken all those years. OK, and is there a bridge in Brooklyn that I can sell you?

Opposing counsel and I agree that in the 21st century, the way to solve this dilemma is by having our client's submit to DNA testing. One problem; the father's body has been cremated; what do we use as a source of DNA?

I'll tell you where we found it in the next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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So here is my client; her natural father died without a will and her half-sister claims the entire estate, alleging that my client did not satisfy the special circumstances required under California law for an adopted away child to inherit from a natural parent (California Probate Code §6451).

Those special circumstances (both of which must be met) are that:

"(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person's birth."(California Probate Code §6451 subpart a (1)).

"(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents. ((California Probate Code §6451 subpart a (2) )".

My client definitely satisfied part 2, as she was adopted by her step-father, the spouse of her natural mother. The argument was over part 1. Just what did it mean that they "lived together at any time as parent or child"?

Then came the next curve ball ... see it in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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As set forth previously, my client's mother was not married to my client's natural father. My client's mother did marry however; and her new husband, the step-parent of my client, adopted her (a "step-parent" adoption). In the world of intestacy (i.e. dying with a will), such an adoption has consequences.

In general, when someone dies without a will and without a surviving spouse or domestic partner, the children of the person who died will inherit (California Probate Code §6402). Absent special circumstances, this will include children that the person who died adopted prior to death (California Probate Code §6450).

But what if the person who died is the natural father (not the adopting father) of a person who was adopted away while in infancy, and that person died without a will? That was the situation in this case. California Probate Code §6451 states that a child who has been adopted by a step-parent may not inherit from the intestate estate of a natural parent, except under specified circumstances.

I'll discuss those circumstances in my next post.

Posted by Theodore M. Hankin | Permalink | Email This Post

Posted In: Adoption , Intestacy

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