Articles Posted in Intestacy

thumbnail%20inland%20empire.jpgLytton Williams Messina & Hankin LLP (the “Firm”) maintain close relationships with their clients and continue to make personalized service their number one priority. Partners Lytton Willaims and Messina were all formerly partners in the Century city law firm of Kelly Lytton & Williams. Prior to joining Kelly Lytton, Sheldon Lytton and Richard Williams, each with more than 30 years of legal experience practiced at O’Melveny & Myers and Manatt, Phelps & Phillips, respectively, and were then partners in Finely Kumble Wagner Heine Underberg & Manley, one of the largest national law firms in the United States. John Messina, head of the Firm’s Temecula Valley Office, is a licensed real estate broker and was the head of a mortgage banking firm in the San Gabriel Valley before turning to the law. Ted Hankin, an attorney and CPA, heads the Firm’s Newport Beach Office and was formerly the Division Chair of the Estates, Probate and Trust Division of Alvarado Smith APC. Henry Holguin, of Counsel to the Firm, was formerly a name partner in Miller & Holguin, and is one of California’s most noted health care attorneys; he currently serves as the general counsel of AltaMed, the largest Federally qualified Community Health Center in the United States.

The Firm’s Practice Areas Include:

1. General Business Litigation and Resolution of Disputes, including Representation of Public Agencies, and Representation of Clients before Federal, State and Local Government Agencies.

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?

Patterns occur in estate planning just like in other fields. The following are typical patterns that I deal with:

1. Parents with minor children

At the very least, a will is required because if the parents die together (car crash) it is in a will where you designate guardians. There are two kinds of guardians: of the person (who will have physical custody of the child) and of the estate (who will handle the financial affairs of the child). The guardians can be one in the same or two different people.

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.

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?

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)).

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.

As I described in my prior post, my client’s natural father had died without a will (i.e. California Probate Code §88) and her half-sister from her father’s prior marriage had petitioned to be appointed the personal representative of the estate (California Probate Code §8400). The surprise came when my client’s half-sister petitioned the court to be declared the sole heir of my client’s natural father.

Some more pertinent facts: My client’s mother was never married to her natural father. However, my client’s mother did marry, and my client was adopted by her mother’s husband. In California this is referred to as a “step-parent” adoption. This is an adoption where a natural parent with custody of the child (in this case, the mother) marries, and her husband (the step-father) adopts the child as his own.

Such an adoption has legal ramifications which I will discuss in the next post.

As I mentioned in my last post, my client was the daughter of a man who had recently died She had a half-sister, who was the child of her father and another woman. The difference was that the dead father had been married to the half-sister’s mother before my client was born, divorcing after a few years, while my client’s mother had not been married to my client’s dead father. Also, the dead father died without a will, necessitating a petition in probate court (California Probate Code §8000). In this case, it was the half-sister of my client who filed the petition in Superior Court of Los Angeles County, North East District.

My client learned of her father’s death only after she received the notice that was required by law (California Probate Code §8110) to be given to her when her half-sister petitioned the court to be the personal representative of their mutual father’s estate, pursuant to California Probate Code §8400.

Once appointed as personal representative, my client’s half-sister filed a petition with the court to have my client’s half-sister declared to be the only legal heir to my client’s father’s estate.

When a person dies without a will (California Probate Code §88) in California they are said to have died “intestate”. Who inherits is then determined by the laws of intestate succession (California Probate Code §240). Generally, if there is no surviving spouse, the children of the person who died will inherit the estate.

In this case, my client’s mother partied with my client’s natural father during the ’60’s. As a result of the partying, my client was born, but my client’s mother and natural father were never married to each other. Prior to my client’s birth, her natural father had been married to another woman, who also gave him a child. That child’s mother and my client’s natural father were divorced after a few years of marriage and before my client was born..

My client’s natural father died recently, without a will, intestate. He owned a home and had some bank accounts, leaving a respectably sized estate. However, without a will, a probate was required to appoint a personal representative who could then transfer the property (California Probate Code §8000).