Despite the fact that 60% of Americans don’t have a basic will, they are very useful documents!  In addition to dictating where your property is to go when you die, and nominating an executor to handle your estate, the will is where parents of minor children nominate guardians to care for their children. 

Some attorneys prefer to have wills witnessed by three persons just in case, but it’s not necessary. If one of the witnesses turns out to be an ‘interested’ witness (in other words, stands to benefit from the will), the will is still valid, but the witness will be presumed to have obtained his bequest by duress or oppression, and will be prevented from inheriting unless he can rebut that presumption, or unless there are two other non-interested witnesses.

California also accepts ‘holographic wills,’ documents that are not witnessed, but where the signature and all substantive provisions are in the testator’s handwriting. However, courts are suspicious of these holographic wills and subject them to strict scrutiny.  When it comes to wills, I suggest you hire an attorney to draft you a simple will, or use an online service. If you use an online service, PLEASE have a lawyer look at the will afterwards to make sure you completed it correctly!

Dear Sir:  Father did not own any property and did not have a will. Was divorced before death from my mother. Never remarried. My mother believes I was named the executor during the divorce proceedings but I was never notified. My father got very sick soon after the divorce and died. Have one brother who was not notified of being the executor. Items left to us have a value of maybe $2500, but legally need an executor to transfer ownership to a properly licensed person.  How do I get the property?

Answer:

I’m sorry for your loss.  How this situation is handled will depend on the state your father was living in at the time of his passing.  All states have some form of small estates administration that will permit you to access small amounts of property with some form of affidavit procedure, rather than a formal probate. With that affidavit, it is not necessary to look for a ruling a divorce proceeding – you simply notify the account holder that your father has passed away, that you and your brother are the legal heirs under the intestacy law of that state, that no other claimant exists with a better claim, and that no probate proceeding is anticipated. Attach a copy of the death certificate and you should be given the property.

In California, this is handled under Probate Code Sections 13100 et seq.  That being said: each state’s requirements for the small estates administration procedure is slightly different, so you’ll want to consult a probate attorney in the proper state.

“My daughter has her biological father’s last name, but he isn’t on her birth certificate. He isn’t involved in her life. My husband wants to adopt her but we’re not sure what all we have to do in order to get it done. Also, my husband is in the military and we are currently living in California. My daughter, however, was born in Texas, which is also where her biological father is. Do we have to go by Texas laws? or California?”

And my answer:

“Unless your daughter is the subject of an ongoing family law case in Texas, jurisdiction in California is appropriate.  You will work with the Superior Court of the County in which you are living.  You will complete California mandatory forms Adopt-200 (to submit at hearing) Adopt-210 (to sign in court) and Adopt-215 (for the judge to sign).

You’ll take the forms to court and pay a filing fee. Soon thereafter, a social worker will meet with you and then write a report. When you receive a copy of the report, you’ll ask for a hearing date. Assuming all is well, you will bring the child with you to court on the hearing date, along with all of the forms, assorted friends/family, and at least one camera, and the three of you will leave court with a new familial relationship (and often with a new Teddy Bear for your daughter).

Best wishes to you.”

So you see… adoption can be a relatively straightforward and painless process, especially where one parent doesn’t need to be consulted – as he was left off the birth certificate!

If it’s absolutely essential, a guardian can be removed by the Court for any of the following reasons, per the probate code:

(a) Failure to use ordinary care and diligence in the management of the estate.
(b) Failure to file an inventory or an account within the time allowed by law or by court order.
(c) Continued failure to perform duties or incapacity to perform duties suitably.
(d) Conviction of a felony, whether before or after appointment as guardian or conservator.
(e) Gross immorality.
(f) Having such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties.
(g) In the case of a guardian of the person or a conservator of the person, acting in violation of any provision of Probate Code Section 2356 (placing the minor in a mental health ward against their will, sterilizing them, etc.).

To request the removal, you will need to file a petition in the proper probate court. While an attorney is not a requirement, it is strongly recommended.  Call the Law Office of Daniel K. Printz at (858) 740-4370 for more information.

In California, beneficiaries under a trust are entitled to annual accountings from the trustee (usually the executor of the will) unless the terms of the will stated otherwise.

This Sunday, April 18th, 2010. 9:00am – 1:00pm. Canyon Crest Academy in Carmel Valley: 5951 Village Center Loop Road, San Diego, CA 92130.

Admission is $2 per person (under 12 years old free). No pre-registration is required for attendees.

LinkedIn is the world’s largest professional network with over 65 million members and growing rapidly. LinkedIn connects you to your trusted contacts and helps you exchange knowledge, ideas, and opportunities with a broader network of professionals.

Within LinkedIn is a Group designed exclusively for members of The Parent Connection to network professionally. In order to be accepted to the group, you must be a current member of The Parent Connection.

Joining is as easy as 1-2-3!

1. Create a professional profile at LinkedIn.Com.
2. Search under Groups for The Parent Connection.
3. Apply for membership.

Confused? Contact me directly at daniel@TheLegacyLawyer.com or Ann Carey-Scott at anncareyscott@san.rr.com for help.

See you online!
Daniel K. Printz, Esq.

In her article on MSN.com’s MoneyCentral, Karen Hube cites postponing estate planning as one of “New Parents’ Top 10 Money Mistakes.” In her online “Wills and Trusts Special”, financial guru Suze Orman states: “If you cannot agree on guardianship for your child, you will be leaving that decision to the state. The state will assign someone to care for your child. Be smart and make that decision before it is too late.”

Advice on how to choose and nominate guardians for your children will be just part of Mr. Printz and Ms. Barron’s 2-hour seminar and workshop. Mr. Printz will discuss the questions most often raised by new parents: Who do I nominate as my child’s guardian? Should that person also control her money? Can my children stay in the family home, or will they be relocated? Ms. Barron will discuss educational financing, 529’s, and UTMA accounts.

Mr. Printz has been an attorney for the past ten years, since graduating in 1999 from San Diego’s Thomas Jefferson School of Law in Old Town. The Law Office of Daniel K. Printz is located at 5631 Palmer Way, Ste. C, Carlsbad, CA 92010. Mr. Printz specializes in estate planning and probate, and for the past three years he has taught “Estates, Wills and Trusts” in the University of San Diego’s intensive paralegal program. Mr. Printz, his wife Erica, and their 2 ½ year old son Samuel live in the Old Creek neighborhood of San Marcos, just west of San Elijo Hills. Mr. Printz can be contacted at (858) 740-4370 or by email at daniel@TheLegacyLawyer.com.

You should review your estate planning documents periodically. If it is not up to date when you die, your estate may not be distributed as you wish.

Your Trust can be changed through an Amendment, a legal document that must be drafted and executed with the same procedure that applies to Trusts. Do not change your documents by writing on them or by crossing out words or sentences.

You should review your plan when:

• You get married or divorced
• There are major changes in your family (births or deaths)
• Your children come of age
• You receive a windfall or significant loss of assets
• You no longer find your choice of guardian or executor appropriate
• It has been 3 years since your last review

March 23, 2010 at the Hilton San Diego Gaslamp Quarter: 401 K Street, San Diego, CA 92101. (619) 231-4040. 

9:00 A.M. – 4:30 P.M.

This is an intermediate level seminar designed for those specializing in estate planning and administration. Seminar led by: Meredith G. Alcock, Esq.; Audrey J. Grossman, Esq.; David P. Jones II, Esq.; and, Daniel K. Printz, Esq.

6.0 units of CLE for Attorneys and Paralegals. 6.0 units of specialization in the area of estate planning for the California Board of Legal Specialization.

Cost: $339 first attendee; $329 each additional. Audio Recording: $339. Manual only: $99. CD and Manual only: $199.

Enroll at: http://www.thelegacylawyer.com/first