A large percentage of my clients, want to leave at least some specific personal items to a specific person or persons.  These may be family heirlooms; a collection; a piece of jewelry; an automobile; etc.  I caution against specifically mentioning them in a will or a trust because frequently people change their minds or they no longer own the asset at their death because they have given it away.  In the event the client wishes to change his or her mine, he or she has to call the lawyer and have the lawyer prepare an amendment to the trust or a codicil to the will.  This becomes expensive and is great for attorneys, but not so great for the clients.

As I have written before, many disputes in California probate involve the disposition of personal items.  Therefore it is important to set forth a disposition of assets.  The California Probate Code sets forth a relatively simple way to accomplish this task.  Probate Code Section 6132 was passed by the legislature in 2006, signed by the governor that year and went into effect January 1, 2007. 

Section 6132 permits an individual to “direct disposition of tangible personal property not otherwise specifically disposed of by the will, except for money that is common coin or currency and property used primarily in a trade or business.”  This writing “is effective if all of the following conditions are satisfied:

            “(1)      An unrevoked will refers to the writing.

            (2)        The writing is dated and is either in the handwriting of, or signed by, the testator.

            (3)        The writing describes the items and the recipients of the property with reasonable certainty.”

The section further provides that the “writing may be written or signed before or after the execution of the will” and “the testator may make subsequent handwritten or signed changes”. 

This writing is useful, but for people with large amounts of personal property, one needs to be careful because:

            The total value of tangible personal property identified and disposed of in the writing shall not exceed twenty-five thousand dollars ($25,000).  If the value of an item of tangible personal property described in the writing exceeds five thousand dollars ($5,000), that item shall not be subject to this section and that item shall be disposed of pursuant to the remainder clause of the will.”

The intent of this statute is to make things easier for people.  You should always contact a California estate planning attorney to make sure that you are doing things correctly and you still need to have a will that refers to the writing or list.

From time to time probate lawyers are in the news. Most of the time it is because of famous clients; wealthy clients; family disputes; interesting bequests; or the continuing saga of the distribution of an estate.

Rarely are they in the news because people are upset with them.  However, recently there have been two cases outside of California wherein it has been alleged that probate attorneys took money from their clients.  Both of these attorneys have filed for bankruptcy.

It was reported in the Rocky Mountain News this month that Denver probate attorney Susan Haines was disbarred (lost her license to practice law) for taking $70,000 from a client’s estate and then committing perjury.

Essentially the facts are as follows.  Ms. Haines was among several attorneys representing an estate in Colorado when a settlement in the amount of $200,000 came in from litigation of a Florida matter.  Ms. Haines then wrote herself checks in the amount of $70,000 even though the amount of work that she had done in the Florida litigation matter was approximately $4,000.  It should be noted that before the litigation matter arose, Ms. Haines’ firm “had logged nearly $100,000 for administrative work done on behalf of the estate.”  

Ms. Haines’ defense was that she had told others involved in the case that she was going to write the checks, but both a hearing board and the Colorado Supreme Court found that she was lying and had not told those people.

Ms. Haines had been practicing probate and elder law for about 18 years at the time this occurred and was active in the bar association on elder law issues.

In Allegheny County Pennsylvania – Pittsburgh is the biggest city in the County – a former attorney is standing trial on three felony theft charges for stealing more than $260,000 from a man whose estate she handled.  The client died in 2002; the attorney was disbarred in 2004; and the trial is ongoing. 

In California, it is not the everyday experience for the attorney for the estate to have access to the estate’s accounts or monies.  It does occur when the attorney is acting as the administrator or the executor of the estate.  Therefore, these are simply cautionary tales — precautions should always be taken. 

Choose your California probate attorney carefully and always make sure you are on top of the case!!

Heath Ledger was acclaimed as a great actor and tragically his life was cut short at a very young age.  I do not know much about his estate planning documents, but I have read that they were done prior to the birth of his child and did not provide for his daughter.  I have also read that Mr. Ledger’s father has indicated that the family will financially support Heath’s daughter.

Were Mr. Ledger a resident of the State of California at his death – Los Angeles, San Francisco, San Diego, Orange County, or anywhere else, his daughter would have received a portion of his estate by operation of statute.  Section 21620 of the California Probate Code provides as follows:

            “Except as provided in Section 21621, if a decedent fails to provide in a    testamentary instrument for a child of decedent born or adopted after the   execution of all of the decedent’s testamentary instruments, the omitted child shall      receive a share in the decedent’s estate equal in value to that which the child          would have received if the decedent had died without having executed any       testamentary instrument.”

Thus in California, under the laws of intestacy, or intestate succession, Matilda would receive the entire estate.  Questions would remain as to how the estate would be managed and whether she would get everything that had not been previously spent at age 18.  Obviously, there might be a lot of money to give to an 18 year old.

All of this points to the necessity of estate planning.  Young people are not immune.  Older people need to constantly revisit their estate plans as circumstances change including values of the estate; financial situations of their children; marital situations of their children, etc.

In the event that it has been some time since you have reviewed your estate plan with your attorney, it is a good idea to do so. 

There is plenty of software out there.  Quicken, Suze Orman, LegalZoom, etc. are all vying for your money.  For almost everybody, using this software is a mistake and I predict that in the next decades because of this software, there is going to more litigation over wills and trusts than ever before.  Thus, instead of paying an attorney to prepare an effective estate plan, there will be two (or more) attorneys involved in litigating an estate in a California probate court.  (In California, probate court is where disputes over living trusts and wills are heard).  The costs of litigation are rarely cheap.  Moreover, the damage to the families involved will be incalculable.

What are some of the problems in doing it yourself?

Because most of the online wills and trusts or kits are created for people in all 50 states, they do not take into consideration differences in the states.  For example, California is a community property state.  A California attorney has the ability to inform you of the laws in California that are different from other state’s laws.

Most states including California have laws concerning the execution of Wills and Trusts.  In the event those laws are not complied with, the Will or Trust might be considered to be invalid.

One of the biggest mistakes people make is not coordinating their estate plan and thinking about the ramifications of their specific gifts.  People call me in Los Angeles – they may be calling me from anywhere in California or from another state, and tell me that they were accidentally disinherited by their father.  For example, they were to receive a certain account, but the account was not part of the estate at their parents’ death. 

Another problem that is often not anticipated is the death of a beneficiary before the person making the trust or will.  What happens then?  People often assume things that turn out to be false.  On the other hand, frequently self-drafted trusts and wills are vague and do not answer questions concerning the payment of taxes and expenses.

Preparing a will or trust might seem easy, but you will never know if you mess up.  It is not like fixing your car where you know right away if you did it correctly.  Most of the time you will be long gone and your heirs and beneficiaries will be fighting.  Sometimes you will be gone and one of your children will lose out because of a mistake that you made!

In the event that you live in southern California and want your estate to avoid litigation after you are gone, contact me.  In the event that someone has already passed, and a probate is required, I can help as I handle probates throughout the state.