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.

1. Revocable Living Trust

A living trust, also known as a Revocable Living Trust or a Family Trust, is a legal document that holds title or ownership to your real property and assets. In the event of your death or incapacity, a successor trustee is named to immediately step in and handle the assets in accordance with your instructions.

2. Pour-Over Will(s)

A pour-over will (1) is where you nominate Guardians for your minor children and (2) will direct any property left out of the trust to go into the trust for disbursement. This must go through probate if over $100,000!

3.  Assignment of Personal Property

This one-page document transfers your personal property into the trust – this is an optional document especially useful for single people who don’t anticipate transferring property to a spouse on their death.

4.  Quitclaim Deed

This document, recorded in the County Recorder where the property is, transfers your real property from you to you as trustee of the trust. Most attorneys will handle the primary residence without additional charge.

5.  Advance Health Care Directive

This document names an agent (also called an attorney-in-fact) to make your health care and living decisions should you be incapable of making them yourself. This document replaces the previous “living will” and “durable power of attorney for health care” documents.

6.  Durable Power of Attorney for Property Management

This Power of Attorney names an agent to make your property decisions and handle property matters should you become incapable of handling them yourself. This includes such powers as: filing lawsuits on your behalf; filing your taxes; and, applying for government benefits.

7.  Certificate of Trust

This is like an ‘abstract’ of your revocable living trust. It specifies the trustees and their powers without including all of the private provisions of the trust. You can use this Certificate of Trust to show account holders like banks and portfolio managers that you have the power to deal on behalf of the trust, without revealing the personal details of your estate plan.

Additional Resources:  If you’d like more information, call the Law Office of Daniel K. Printz right now at (858) 740-4370.

1. Minor Children

Parents of minor children want to make sure that responsible parties are prepared to step in and raise their children if they cannot. They will want to appoint a Guardian of the Person and a Guardian of the Estate, who may or may not be the same persons.

2. Incapacity

Clients want to make sure that if they are temporarily or permanently incapacitated, a person they trust is nominated to handle their health care and property decisions. At the same time, the client can give instructions, such as end-of-life guidelines or property desires.

3. Distributions

Clients want to make sure that their assets go to certain persons on their death. The creation of a will, or a will and trust, is necessary to accomplish this goal. There are four types of beneficiaries; specific/direct; contingent; alternative; and, residuary.

4. Probate

Clients want their estates to avoid probate, which will eat away at their beneficiaries estate and cause significant delay in the transfer of assets. The only way to do this is to place all assets in probate avoiding devices, such as life insurance, pay-on-death accounts, and living trusts.

5. Estate Taxes

As of 1/1/2011, all estates over $1M will be taxed at 55% on transfer to non-spousal beneficiares. Clients who are married can easily save $550,000 on said transfer with the creation of a trust! Other strategies, such as inter-vivos transfers, can also significantly reduce taxation.

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.

Absolutely!  You do not have a right to keep funds given by mistake. Consult a local probate attorney regarding the statute of limitations on recovery of the disbursement.  If the beneficiary refuses to return the balance, the executor will sue on behalf of the trust, and the costs of suit might be added to the recovery.

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.