Recently a Chicago probate court declared millionaire adventurer Steve Fossett dead five months after he disappeared while on a solo flight over the Nevada desert.  He had been the subject of an intensive search that yielded other human corpses.  Mr. Fossett’s wife succeeded in having his will entered into probate.

In California, the Probate Code provides a procedure for missing persons.  “Probate Code Section 12401 provides that a person who has not been seen or heard from for a continuous period of five years by those who are likely to have seen or heard from that person, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.”

In the event that the person is presumed dead, the Probate Code provides that his estate “may be administered in the manner provided generally for the administration of estates of deceased person.”  Therefore, jurisdiction is with the probate department of the superior court of the missing person’s last known address.

In the event that the missing person left a will or trust, the person named in the document has first priority to be the executor or successor trustee.  In the event that the person died intestate (without a will), the normal priority for the selection of a personal representative is followed.

The rules for notice of hearing are the same except that the Probate Code requires that “notice of hearing on the petition shall also be sent by registered mail to the missing person at his or her last known address.”

At the hearing, the court must determine that the missing person is presumed to be dead.  Ideally evidence should be offered.  The court may order certain steps to be taken in order to satisfy itself.

In a subsequent blog post, I will discuss what happens in California if the missing person reappears!!

In the meantime, if we can be of assistance with a probate, estate administration, or estate planning, please give our office a call at 310-391-1311.

California is one of many states that have passed laws punishing people for abusing, neglecting, and/or exploiting adults who are vulnerable.  Quite often these people are seniors.  Obviously that is good for people who are attempting to recover for any of these things.  However, as often happens, the purpose of the law — in this case to discourage this type of conduct and punish wrongdoers — can sometimes be lost and the law can be used unfairly.  This is especially true in will and trust contests where family members are frequently alleging exploitation.  The result of this in California probate proceedings can be very expensive.

Recently, Robert Fleming, a Tucson, Arizona attorney wrote about a case in Arizona that was the subject of a Court of Appeal decision in February 2008.  The facts of the case are as follows: family patriarch died, leaving a “warring family”, three different trusts, and a will.  His will and trusts left most of his estate to his daughter; very little to his son; and a small gift to his sister (hereinafter “aunt”).

The son, thought that his sister had taken advantage of their father and he and the aunt  filed a probate proceeding in which they alleged exploitation.  All parties ultimately agreed that a special administrator be appointed to investigate the allegations, and that they would be bound by the special administrator’s decisions.

The special administrator ultimately found that the daughter had behaved properly; she questioned the motivation of the son and aunt for filing the action; and she recommended dismissal of the actions.

The probate judge dismissed the case.  The judge ordered the $27,500 fee of the special administrator to be borne by son and aunt’s share of the trust.  That was appealed and the appellate court sent the case back to the probate judge and instructed the probate judge to determine if son and aunt’s actions were malicious in alleging exploitation.  If so, they would be liable for the administrator’s fees.  If not, the estate would be liable.

The moral of the story is that allegations of exploitation can be proper or they can be unfounded.  Either way, there are going to be attorneys fees and other costs.  Even if son and aunt have to pay the special administrator’s fees, the estate will have to pay attorneys fees and court costs.

In the event that it has been a while since you have reviewed your estate plan, including your will and/or your living trust, it makes sense to review it to make sure it is current with your situation.  If you have not done your estate plan yet, I would enjoy speaking to you about getting it started.  I can be reached at 310-391-1311.

In my previous blog I wrote about disputes over personal items within families.  Frequently the cause of these disputes are poorly written Wills or Trusts or the failure to prepare a Will or Trust.  Many of these, even when there is a living trust, end up in the probate court.

In order to avoid difficulties, the first thing that needs to be done is to have a Living Trust or a Will prepared by a competent California estate planning attorney.  In your Will or Trust, be detailed and specific.  If you want the Barbie collection to go to your granddaughter Jessica, mention her by name.  Do not just say “granddaughter” because even though you might only have one at that time, you might have more than one at your death. 

Have at least one back-up (alternate) beneficiary for each item you are distributing pursuant to your Will or Trust.  Otherwise, technically it is part of the estate, and the executor or administrator will be responsible for its distribution.  People may be upset with his or her decision(s).

You may wish to set up a method for children or family members to select  those items that you do not want to give to a specific individuals.  Another way of going about it is to invite family input while you are living.  In other words have them make known to you what they want and what is most important to them.  Then in your Will or Trust, you bequeath based upon what you have been told.

In the event that it has been a while since you have reviewed your estate plan, including your will and/or your living trust, it makes sense to review it to make sure it is current with your situation.  If you have not done your estate plan yet, I would enjoy speaking to you about getting it started.  I can be reached at 310-391-1311.

As a California probate attorney, frequently I am in court waiting for my case to be called, and I listen to the judge call other cases.  Sometimes, the disputes are more juicy than any daytime soap opera writer could think about.  Other times the disputes are more mundane and involve the possessions of the decedent.  These disputes can result in court cases over items that may have a value of less than $1,000.  Family members and other beneficiaries can become very contentious over items that have sentimental value.  Sometimes the item itself is like a pawn in a dispute that exists between different people.

Virtually all California probate lawyers who have been around for a bit can remember a case wherein family members were fighting over something that was worth less than the combined attorneys fees.  It is similar to what happens in divorce cases.

Recently, I read about a case in Kansas City, Missouri that involved a former Hallmark executive (I write this the day after Valentine’s Day – traditionally a great day for Hallmark) who had a Will prepared in 1985 and died in 2003.  Jane Frost Empie did not have children, but she did have many relatives.

Provisions of her Will included a bequest of $20,000 to a trust fund for the care of “my cats, namely Tiger, Boilvar Gray Girl and Motor Mouse.”  At her death none of the cats were alive.

She had a lot of specific bequests of household items including a gold teapot, a cut-glass decanter; pictures; Haviland china; and a cut-glass punch bowl with 12 glasses, mirrored base and silver ladle to various individuals. 

Between 1985 and 2003 many of the items in the Will had been sold or given away as Ms. Empie had downsized during that period.  Also, the person to whom she had left cut-glass punch bowl with all the trimmings had predeceased her.

Problems within the family ensued and a court case was filed.  My next post will discuss what can be done to prevent needless probate disputes that arise even with living trusts.

Most California probate proceedings are fairly smooth.  Assuming the estate was solvent and the family gets along decently well, there is not much that can go wrong.  However, when a family does not get a long or someone feels slighted, well then a probate proceeding can air out all of the family’s dirty laundry and be quite an interesting affair.  From time-to-time there are some interesting ones involving famous people.

Once such case involves the Estate of Ike Turner.  Ike and Tina Turner were a dynamic dual at one time.  He was a bandleader, guitarist, and pianist whowas involved in the beginnings of rock ‘n’ roll as well as modern rhythm and blues.  However, he lost a lot because he became addicted to drugs, was sent to prison on drug-related charges, and because of allegations that he abused Tina Turner, his former wife.

Turner died in December 2007 at age 76 with a modest estate of $200,000.  Nevertheless, that estate is the subject of a battle between his children against a woman, Audrey Madison Turner, who he married the year before he died.  The dispute is over two conflicting wills and whether Audrey Madison Turner was actually married to Ike at his death as Ike filed for divorce two months after the marriage. 

Turner never appears to have utilized an attorney to prepare a will or a trust for him.  Rather there are handwritten Wills that he wrote in October 2001, October 13, 2007 and another note that he wrote in November 2007 that potentially revokes his October 2007 handwritten Will.

What is the moral of the story?  While it may sound self-serving, it rarely hurts to see an estate planning attorney to put your affairs in order.  Instead of taking the time to do that, there are now at least two attorneys involved fighting it out over a $200,000 estate.  How much of that will be left when all is said or done?

As a probate attorney, we get our share of interesting cases.  Recently, I had one wherein the decedent had two wives.  Now in California that is not allowed.  Actually, it is not allowed anywhere in the United States. Who was the surviving spouse?

In the case, it was alleged by wife number two, that the decedent had divorced wife number one.  The divorce took place in Nevada.  Despite the fact that there were notarized documents, wife number one swore under penalty of perjury that she did not go to Nevada with her “former” husband to obtain a divorce. (The notary is no longer a notary; could not easily be located; and Nevada does not require notaries to turn in their notary books to a government agency) The address listed on the divorce papers for wife number one turned out to be an auto body repair shop more than 150 miles from her residence at the time of the divorce.  Moreover, in the divorce petition, wife number one allegedly waived all of her rights to husband’s assets including his pension and received nothing in return.

Our office represented wife number one and pointed that out to the lawyer for wife number two.  Now it should be noted that wife number one had not lived with the decedent in over 20 years; nor had they stayed in regular contact. 

What should be the result?  Although, we thought we had a pretty good case and that we could prove that the divorce was not valid, there simply were not enough assets to fight over.  The parties settled and are splitting his pension!  In a sense, it could be said that he did have two wives!

One issue arises more than any other in California probate and I imagine in other states as well and that is that the Will cannot be found.

There can be a couple of reasons for that.  The first that comes to mind, is that there never was a will.  While I am not sure how the statistics are arrived out, I frequently read that over half the people never do a will.  This may or may not be true.  What is true, is that a lot of people do not plan for the distribution of their estates.

A second reason that the Will cannot be found, is that the decedent discarded it.  Sometimes this is done intentionally and sometimes unintentionally.  The family might have been under the impression that a Will had been done, but the testator (the person who died) may have revoked it and thrown it out.  Sometimes it is thrown out unintentionally. The testator may have become mentally infirm and a consequence may have been throwing important documents away.

In California, we do not have a central place to record wills or trusts.  Therefore it is sometimes difficult, if not impossible, to ascertain if a Will was ever done.  When I receive telephone calls from people, I tell them to look everywhere.  Search the house!  Is there a safe deposit box? (Sometimes it is difficult to get in the safe deposit box which makes searching difficult – call a probate attorney).

A third major reason that a Will cannot be found, is that someone has torn it up.  This happens when a child sees the Will and is not happy with the bequest left to him/her and/or is unhappy with the nomination of the executor.

Is there a moral to this entry?  Possibly.  One possible solution is to let people know where you keep the Will and provide a copy to a trustworthy person.  In the event that you revoke the Will, let the person know and if you do a new Will give that person a copy of the new Will!

Our office conducts probates throughout the state of California.  Many are of the garden variety type – everything is to be distributed equally to the children and the children get along fine.

However, and maybe this is because we are in California, a high percentage of the probates we handle are not like the above.  This can even happen when there is a Will that says everything equally to the children and it names one of the children as the Executor.  Here is where it becomes more complicated – the child named as Executor fails to start the probate proceedings.  In California, as in virtually all of the states, the Executor has a duty to lodge the Will with the probate court and begin the probate proceedings.  This is actually normally done by hiring a probate attorney – probate lawyer.  The probate attorney will prepare the petition for probate for the Executor to review and sign.  After it is signed by the Executor, the probate lawyer will file the petition and lodge the original Will with the court.  In California we file it in the appropriate county.

When the Executor fails to do this, problems may arise.  For example, a sibling may petition the court to be named Executor/Administrator because the person so named has refused to lodge the Will.  Usually this awakens the person who has been named as Executor in the Will and ultimately that person will be named as Executor unless he/she has other problems.

The lesson to be learned is upon the death of the person who made the Will, the Executor should contact a probate attorney – probate lawyer and initiate the proceedings.  In the event that the person died in California, you will want to contact a California probate lawyer – probate attorney.

I frequently hear a comment such as this one: ‘my mother died and her Will leaves everything equally to all of us kids.   I just need help in distributing her estate.’  More often than not, this situation will result in a probate in California.  The only times it will not are if there are less than $100,000 in assets that are not in a trust, in joint tenancy and/or have beneficiary designations on them.

A Will is essentially a map for the parties and the court to follow in administering the estate.  It will include the identification of the beneficiaries; the nomination of the executor and possibly the nomination of a guardian for a minor child or children.

It should be remembered that a Will only has significance upon death. Therefore, should one become disabled or incapacitated, the Will cannot be relied upon.  On the other hand, there will still be a probate!

For answers to questions regarding probate, please contact a California probate attorney and/or a California probate lawyer.

The probate process begins with the filing of a petition for probate by someone seeking to be the executor or the administrator.  In California we use the word “Executor” when there is a Will and we use the word “Administrator” when the decedent died without a Will.  The only significant reason for there being two different words is to distinguish whether the probate involves a Will or the law of intestate succession.

Almost every day I receive a telephone call from someone informing me that someone died.  Often it is an uncle (or aunt) that died that had never been married and did not have any children.  Who has priority in this situation to serve as administrator?

Let us back-up and realize that the California probate code contains a variety of statutes that answer a variety of questions.  To answer the question of who has priority to be the administrator, we go to probate code section 8461 which reads as follows:

            “Subject to the provisions of this article, a person in the following relation to the decedent is entitled to appointment as administrator in the following order of priority:

                        (a) Surviving spouse or domestic partner as defined in Section 37.

                        (b) Children.

                        (c) Grandchildren.

                        (d) Other issue.

                        (e) Parents.

                        (f) Brothers and sisters.

                        (g) Issue of brothers and sisters.

                        (h) Grandparents.

                        (i)  Issue of grandparents.

                        (j) Children of a predeceased spouse or domestic partner.

                        (k) Other issue of a predeceased spouse or domestic partner.

                        (l) Other next of kin.

                        (m) Parents of a predeceased spouse or domestic partner.

                        (n) Issue of parents of a predeceased spouse or domestic partner.

                        (o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian of any other person.

                        (p) Public administrator.

                        (q) Creditors.

                        (r) Any other person.”

Thus, you can see that there is an answer as to who should be named the administrator for most situations.  Well what if two people at the same level (for example, two children) wish to be the administrator?

Probate Code Section 8467 provides the answer to that issue:

            “If several persons have equal priority for appointment as administrator, the court may appoint one or more of them, or if such persons are unable to agree, the court may appoint the public administrator or a disinterested person in the same or the next lower class of priority as the persons who are unable to agree.”

Ideally, family members will agree, but otherwise the court has the power to make the decision!