November 12, 2013

How to Contest a Will In California

There are times when a will is challenged in California. There are many reason why this happens and the law sets forth the procedures to follow in making a challenge. Some reasons a will may be challenged include:

The will is fraudulent.
The will wasn’t properly executed.
The person creating the will didn’t have the capacity to legally sign the will.
The person was unduly influenced into signing it.
The person challenging the will desires that a different personal representative be appointed by the court
.

Challenging or contesting a will is not to be taken lightly. In order to prove that the will is invalid, one of these reasons must be proven in a court of law. The idea of simply challenging a will because you don’t like the contents may seem reasonable -- but if you can’t prove one of the above factors for invalidating it, you may very well be wasting your time and resources.

Irrevocable Trusts are created in two ways:

1. A revocable trust becomes irrevocable after the grantor has died.

2. An irrevocable trust is established while the grantor is living.

Some types of irrevocable trusts will help to save estate taxes, or provide liquidity for paying the taxes.

Self-settled irrevocable trusts will not generally provide asset protection in California.

Working with an estate planning attorney now can offer so much solace and support for your family and friends later. It truly is a gift that you can give your family that goes far beyond financial rewards.

For more information, contact Ted Hankin today.

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April 26, 2013

What Ifs??? Presented to the Estate Planner in California

What if, despite everyone’s good intentions, there is conflict after the death?

What if an heir or beneficiary or someone who thinks that they should have been made an heir or beneficiary complains?

What if a trustee never accounts to the beneficiaries and enriches himself at the expense of the others?

That is when we get into another part of what I do, probate and trust litigation. This is where there is a high price paid, both dollars and emotionally, for resolution of the hurt caused by the estate planning (or lack thereof).

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October 1, 2008

The Joint Tenancy Deed Trumps the Will

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.

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December 5, 2007

I Can't Be Disinherited In California, Can I?

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.

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November 30, 2007

Your Mother's California Will Disinherits You But You And Your Sisters Are Joint Tenants With Right Of Survivorship On The Deed To Your Mother's House; Who Wins?

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.

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