California Estate Planning Attorney Blog

What happens if a person dies without a will?

When a person does not have a will or legal instrument to transfer property when the person dies, state law determines what happens to property. Generally, property goes to the spouse and children or, if the person has neither, to other close relatives. If no relatives can be found to inherit property, it will go to the state.

Who will care for children when a person dies?

A court will determine who will care for young children if the person dies without a will.
What happens when a person dies without a will in California and he or she is an unmarried same sex couple?

If a person is part of an unmarried same-sex couple, the surviving partner will not inherit anything unless the person is registered domestic partners. If registered, the couple will be able to inherit like spouses.

What products help a person make a will?
Nolo offers products to help a person make a will. Quicken WillMaker Plus is for alsmost any size estate and any estate plan.

Can someone challenge a will after a person dies?

Few wills are challenged in court. To invalidate a will, someone must go to court and prove that it is flawed like the signature was forged or the person was not of sound mind.

Are handwritten wills valid?

Handwritten, not witnessed wills, also known as holographic wills, are not legal in all states.

Continue reading "Wills FAQs - California" »

Under California law, in order for a formal will to be valid, the will: (1) must be in writing signed by the testator, or by someone at his direction and in his presence; (2) must be signed in the presence of two disinterested witnesses who understand that they are witnessing the execution of a will.

For example, a typewritten will meets the writing requirement. If Testator suffered from severe tremors, he could ask his attendant, to help him execute his will in Testator's presence and at his direction.

A valid will may revoke a valid prior will if the testator indicates the intent to do so. To revoke a prior will, a new will needs to conform with the same requirements as the prior will to be valid and effectively revoke the prior will. When a testator fails to validly execute a new will, the prior will not be revoked.

Under California law, witnesses do not need to be at each other's presence, but the witnesses each need to see a testator sign the document purported to be the will. There is no requirement for the witness of a will to know the contents of the will, but the witness must understand the document to be the testator's will.

To make sure a witness understands a document to be a testator's will, the testator should explain the purpose of the document to the witness prior to signing. If a witness signs a document too quickly, there might be question on whether the person understood what the document was.

A trust is a fiduciary relationship with respect to a settlor's property. The person creating the trust, the settlor, may create a testamentary trust through the provisions of his will. The trustee holds the property, the trust res, for the benefit of the beneficiaries. A trust requires: (1) an intent by the settlor to create the trust for a valid, legal purpose; (2) trust res; (3) beneficiaries; (4) a trustee; and (5) valid delivery of the trust property to the trustee.

A charitable trust is a trust that is created in order to benefit society, such as public health and welfare. When a trust benefits society, it does not have any specific individuals who are beneficiaries. All persons who fall within the class described in the trust receive the trust benefits.

Under the cy pres doctrine, a court has the equitable power to give effect to a charitable trust where the trust purpose would otherwise fail as long as the court only changes the mechanism of carrying out the goals of the trust as opposed to the trust beneficiaries. A court has cy pres powers to effect a charitable trust where the settlor manifested a general charitable intent as opposed to a specific charitable intent.

Continue reading "Wills and Trusts in California" »

What is a pourover will? A pourover will is like any other will, except that it has only one beneficiary, which is the testator's living trust. Usually a person who makes a trust also makes a pourover will. The pourover will transfers assets to the trust to ensure that these assets will be subject to the distribution plan in the trust and receive the benefit of trust's tax reduction provisions. This is because in a living trust, the person may forget to title his property in the trust. For example, someone opening a bank account may not think of the hassle of bringing trust documents to the bank for verification so he opens the account in his own name. When the person dies, the property not titled in the trust name is distributed by the pourover will.

The pourover trust pours assets into the trust.

The pourover will controls only probate assets. These are assets that are not in a trust, not in joint tenancy like a bank account with people's names, not inherited by a surviving spouse like a house titled with the right of survivorship, not insurance proceeds, and not in an IRA or 401K. Probate assets are generally titled in the name of the decedent only.

The assets in a pourover will may need to go through probate if it is real estate or add to up to more than $100,000. If the amount does not exceed $100,000, the assets can be transferred to the trust by using declarations as authorized by California Probate Code section 13100.

The pourover will distributes tangible personal property, such as furniture, jewelry, clothing, to the deceased person's beneficiaries. The will nominates executors and guardians for minor children. The pourover will revokes prior wills.

Continue reading "Pourover Will - Walnut Creek" »

Rinne Legal offers a free initial consultation on estate planning to individuals in and around Walnut Creek, San Francisco, Fairfield, Oakland, and Sacramento. To prepare for a consultation, it helps to gather information on the three Ps: People, Property, Plan.

Who are the people in your life? First there is yourself, then your spouse if you are married. If your parents are alive, you might count them in on your estate plans. If you have brothers and sisters, you might want to take care of them. Besides individuals, you might want to leave some of your assets to charities, colleges, or churches. There are your children and grandchildren if you have any.

In California, non-marital children may inherit from the mother when there's parent-child relationship by the mother giving birth and from the father only if father acknowledged the child, subsequent marriage to the mother, or court decree of paternity. Laws allowing non-marital children to inherit from mothers and not fathers violate the US Constitution's equal protection clause.

If you die intestate, foster children and stepchildren are treated likewise if it's established the parent would've adopted but for a legal barrier. Non-marital children as a general rule may inherit from and through the mother but only from and through the father if paternity established by subsequent marriage of the parents, adjudication of paternity during father's lifetime or proof of paternity.

Next, make a list of the assets you own or control. Identify insurance policy numbers and exact dollar values. Write down notes on the cash, stocks, bonds, death benefits, real estate. Knowing the property allows someone to create special asset distribution mechanisms such as a life insurance trust where the trustee holds life insurance policy proceeds for beneficiaries. California allows a settlor to name the trustee of a life insurance policy in a will.

Finally, consider the plans you would make for the important people (including yourself) and the property inventoried in the event of incapacity or death. Who would you name to make decisions for you if you could no longer do so yourself on your medical and finances? Who would care for your children? How would you distribute your assets to heirs? Would you prefer to spare your heirs probate costs and time? Would you like to minimize the impact of estate taxes or gift taxes? Do you want the beneficiaries to know what you are leaving them or keep it a secret?

Continue reading "Initial Estate Planning Consultation - Walnut Creek" »

CNNMoney.com Lesson 21: Estate Planning discusses the top things to know about estate planning. Number 1 on the list was to have a plan that ensures family and financial goals are met after death.

When studying estate planning, it helps to have a glossary of often used will terms:

ACTS OF INDEPENDENT SIGNIFICANCE: Does extrinsic fact or event have sufficient legal significance apart from will? Act must be one which ordinarily has some non-testamentary utility or function. For example, "$1000 to my employees at time of my death" - Act of choosing employees non-testamentary function since act done to enhance business, not to designate beneficiaries under will. For example, "$1000 to person who has letter from me naming him as beneficiary" - Invalid because purpose of act is to designate a beneficiary.

FRAUD: representation material fact known to be false for inducing action or inaction which does in fact induce action or inaction. 1) execution: testator does not know instrument signed is his will, then entire will void and estate passes by prior will or intestate. 2) inducement: testator knows signing will but misled by fraudulent misrepresentation as to provisions, then only part of will infected by fraud void. 3) failure to revoke: testator requested revocation, but wrongdoer fails to honor request, then will invalid. 4) prevention of will: testator told a lie to prevent him from writing will. 5) constructive trust: unjust enrichment or injustice (omission of beneficiary) would otherwise result, then court probates the document and forces wrongdoer to serve as constructive trustee for beneficiaries.

MISTAKE: 1) execution: testator mistakenly signs wrong document, then no intent to make will. Will is invalid and parol evidence inadmissible. 2) inducement: testator makes particular disposition based on mistaken beliefs, then will is valid and no relief unless both fact of mistake and disposition of property testator would've made but for mistake appear on face of instrument. 3) content: scribner's error (i.e. provision excludes/includes beneficiary) leaves no relief because to do so would subject every will to attack and destroy Statute of Wills.

POUR OVER TRUSTS: attempted testamentary gift to pre-existing trust; attempt by decedent to have assets in estate added to corpus of trust which he (or 3rd party) created during lifetime. Where inter vivos trust was in existence when testator executed will, and will does not modify trust, courts sustain trusts based on 2 theories: 1) incorporation by reference: reference in will incorporates preexisting trust into testamentary plan. 2) independent significance: act of establishing preexisting trust has legal significance apart from will. Where testator modifies preexisting trust after executing will, courts are split in decisions as to effect of modification on will: a) some courts invalidate entire testamentary gift; b) other courts uphold gift but disregard modification; c) modern trend: courts uphold gift as modified.

Continue reading "Glossary of Will Terminology - San Francisco" »

A codicil is a testamentary instrument executed subsequent to the execution of a will, which modifies, amends or revokes a will. A codicil must meet all will formalities for a traditional or holographic will. A holographic will is one in which the material provisions are handwritten by the testator, and which is signed by the testator. A holographic will need not be witnessed.

A codicil may be revoked by physical act, accompanied simultaneously by intent to revoke the instrument. For example, the words "Null and Void" can be written across the text of the codicil in the testator's handwriting, followed by the testator's signature. The act of writing "Null and Void" across the text serves to obliterate or cancel the codicil by physical act. If obliteration occurs on all material parts of the codicil, and the testator shows intent to not give a gift by telling several people, there is a complete cancellation of the codicil.

A codicil may incorporate by reference other documents. Incorporation by reference permits the testator to incorporate any document by reference if (1) the document was in existence at the time the testamentary instrument was executed, (2) the document was clearly identified in the instrument, and (3) the testator intended to incorporate the document. For example, a codicil can incorporate a note written by the testator, in existence at the time the codicil is created, by clearly identifying the note.

If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.

Essential part of any estate planning effort is a diligent assessment of your legal relations. No matter if you are rich or not so well-off there are plenty of those. Every ordinary person has obvious ones, like employment contracts, family ties (married?) or partnerships in business enterprises. Each single legal relation comes with certain rights and/or obligations. There is also a relationship to assets, called ownership. Owners have also rights and obligations, e.g. the right to sell an asset or the obligation to pay property taxes on real estate.

Normally the owner knows that he or she actually owns something. Usually the owner is also aware of the respective rights and obligations that come with ownership of assets. Imagine now the unhappy event that you die from one day to the other. You would normally expect your heirs to take over, but heirs are not visionaries. The heirs would need to figure out what assets you have owned to know their rights and obligations.

Therefore, it is a good idea to create an inventory of all assets - tangible (like a car or a house) or intangible (like bank accounts, royalties or patents), so you heirs will get an overview of your estate. Often assets come with a document of title that expressly states your ownership (like the deed to a house). Inventory and documents of titles are essential when it comes to the distribution of an estate. Therefore those papers should always be held in an order and accessible in a way that somebody who is not familiar with your financial situation could get on overview if need arises.

The same applies to the usual instruments of estate planning, which are expressed in documents as well. Those essential documents encompass the last will, your living trust document, your health care directive and the durable power of attorney. Your heirs will need those documents to figure out who is entitled to your estate. It will avoid confusion if you keep those documents accessible. You should also let your intended heirs know where you keep your papers. In addition a safe backup - either digitally or hardcopy is advisable for worst-case scenarios (like a disastrous fire). Keeping your documents in order and safe will provide you with ultimate peace of mind.

Continue reading "Before You Die - Get Your Paperwork in Order" »

According to an Article on Forbes.com (see here) a recent survey showed alarming numbers when it comes to estate planning.

Roughly 65 % of 1,022 Adults asked do not have a will, that directs who inherits their assets in the worst case. 71 % lack an advance health care directive (living will), a legal instrument that is designed to direct critical health decisions if someone looses the mental capacity to decide on his own. No numbers were mentioned regarding the existence of a durable power of attorney but it can easily be assumed, that the results would have been similar terrifying.

Conductors of the survey also asked for the reasons, why people would not plan. Many individuals mentioned that estate planning were not their prime focus, especially in midst of recession. And 19 % thought, that estate planning was only important to the rich. These reasons are popular misconceptions of estate planning, which I have already highlighted (among others) in a post last year (see here).

I cannot stress enough that nearly all aspects of estate planning are of paramount importance to most people, even to those who struggle to cope with daily life. Information about estate planning are available for free, e.g. in our firm's learning center. If you're reading this post and you have not yet started your estate plan, it is time to do it now.

Continue reading "65 % of Americans Do Not Have a Will" »

A recent article in the Wallstreet Journal Blog Section covered the possibilities to plan for the future of a pet that outlives its owner (see here).

If you'd like to ensure that your pet receives the proper care after you die you should follow these important steps:

• Appoint a "Pet Guardian" and leave instructions for the caregiver (This is simply a non-enforceable nomination of a trusted person, that you believe will take loving care of your pet). You can use your will or any other document for this.


• Make sure the financial needs of your pets a covered. A already existing living trust may be used for that purpose but need to be adjusted to set aside the necessary funds for your pet. In average a dog costs $1,400 pa and a cat $1,000 pa. Depending on the age of your pet, the trust might require funding for up to 20 years pet care. You should also implement a clause into your trust that governs the use of the pet funds for the case that not all funded money is used. Such a clause should name an alternative beneficiary.


• Make sure that the appropriate legal instruments are also implemented for the case that you become incapacitated. You should draft your durable power of attorney in a way that enables your agent to financially cover the needs of your pet. The agent does not necessarily have to be the nominated caregiver.

If you'd like to learn more about living trusts, which can be used to cover the financial needs of your pet, you will find further information on Rinne Legal's website (see here).

Continue reading "Estate Planning for Pets" »

Some may wonder if it is possible to direct their own Interment. The answer is yes, legally binding arrangements regarding the choice in between burial and cremation and the kind of ceremony that is to be conducted can be made either in a last will, in an advance health care directive or within any other document as long as it is in writing.

While many leave some last instructions to their survivors only a few know, that those instructions are only legally binding under the California Health and Safety Code if two conditions are met:

• First the directions must clearly, unambiguously and completely state the final wishes of the decedent in sufficient detail and


• second the decedent must have provided the financial means to cover the selected disposition of his or hers remains and the ceremony. The finances can be provided by either trusts, insurance, commitments by others or by any other effective and binding means. (California Health and Safety Code Sec. 7100.1.)

Especially the second condition requires that the whole estate plan takes the interment instructions into account. It is not enough to simply state that the final ceremony is to be held in a certain way as long as the costs are not covered. There are some options to cover the costs. One could include respective arrangements within his living trust. Alternatively there are special trusts that cover funerals - be warned: the costs for those trusts may be very high (see the respective blog entry from last year).

However the costs are taken care of, it is important that you do take care of it, if you want your final instructions to be binding.

Continue reading "Binding Funeral Instructions in California" »

Generally speaking undue influence is a legal doctrine that involves one person taking advantage of a position of power over another person. The law usually tries to prevent undue influence and therefore often renders legal acts as invalid if made under undue influence.

This is especially important in probate proceedings. Undue Influence is one of the most common grounds to formally contest of a will in court. A good example can be seen in the case of Alfred Glassell's. The case and the according court proceedings has been described by Lou Ann Anderson on http://www.examiner.com. The last will of Alfred Glassell, in which he left large parts of his estate to the Museum of Fine Arts in Houston has been challenged by his daughter, Curry Glassell. She claimed that the museums law firm, Vinson & Elkins used undue influence to convince her father to change his last will in favor of the museum. In the end the will was uphold by the Jury.

This case shows, how complex and risky probate procedures can be. The outcome of a probate procedure can never be predicted hundred percent. Therefore it is usually a good idea to avoid probate procedures at all. The most common tool for this purpose is a living trust. Living trusts are generally harder to challenge under the doctrine of undue influence due to their persistent nature. You'll find a lot of information about living trusts on the firm's website.

Continue reading "Undue Influence in Probate Proceedings" »

Sandra Block has published an article on USA Today, regarding five common misconceptions about last wills. She rebuts the following myths:

• Estate planning is only for rich people
• If I die without a will, my spouse will inherit everything
• Having a simple will avoids probate
• After I create my will or living trust, I'm all set
• I could be held responsible for a deceased parent's debts

If you would agree to one of the aforementioned statements, it is probably a good idea to read her article. Anyway, if you're interested in estate planning in general you may also consult our firm's learning center.

I've stumbled over a funny cartoon on comics.com that is related to this blog's topic. An old lady shows up at the notary, announcing that she is willing to change her last will. The clerk asks for the reason and the lady replies "my cat died". In her old will she had left all of her estate to her cat and not to her husband.

Technically pets can not be specified as proper beneficiary of a last will or a living trust. This is because all pets are legally treated as personal property and not as a legal person. However the right estate plan can ensure that somebody you would like to look after your pet when you die will do it.

Instead of leaving instructions in a will, most people provide for their pet in their living trust (more information about living trusts can be found within the firm's learning centre). This avoids lengthy probate proceedings and ensures that somebody can immediately look after your pet.

A pet's trust specifies the details concerning care and control of your pet, as well as making the necessary funds available to the caretaker. Usually ownership of the pet is transferred to trust along with the necessary funds. The designated caretaker becomes trustee of the trust. Usually such a trust also names a beneficiary, who will inherit the principal of the trust once the animal has died. The California Probate Courts governs the details of a pet's trust in its section 15212.

Continue reading "Leaving Assets to Pets" »

I've come across an interesting article in the Contra Costa Times, written by Laura Casey. Using the example of a recently widowed mother of two young sons, the author explains the importance of naming a legal guardian for children.

It is of course a very difficult decision to make, but an important one. If you don't name a legal guardian for your kids, the probate court is going to do appoint a guardian of its choice as soon as both parents die. The decision of the court may or may not be what the parents would have opted for themselves. Therefore it is always a good idea to name the legal guardian in advance even though the thinking about such a topic feels awkward. In most cases the court will follow the decision of the parents and presume that the parent's wish is in the interest of the child.

The decision for a specific person as a guardian is complex. Family values, religion, race and culture and a possible relocation can play a major role. Often a lot of thinking is required to find out the right person to be the kids guardian. The guardian should also be informed of the choice and agree to it, because nobody can be forced to be a legal guardian.

Usually a legal guardian can be named in an ordinary letter, within the declaration of a living trust (although this is not always recommended), or within the will (see my website for further reference). Because its importance it is always useful to contact an estate planning lawyer in this issue. The consultant will not only check if the naming of the guardian was done in the right way but also assist you in other estate planning matters.

Continue reading "Naming of a Legal Guardian for Children" »