This Estate Planning article was originally published in the April/May 2015 Issue of Kern Business Journal.
Estate Planning | My grandmother always used to tell me that an ounce of prevention is worth a pound of cure. Boy, was she right when it comes to self-prepared or handwritten wills. Many years ago, I handled the estate of a woman who lived a very modest lifestyle prior to her death. She spent her whole life saving her money. She handwrote her own will, leaving her entire estate of approximately $700,000 to numerous charities. I don’t know whether she was attempting to save on attorneys’ fees, or if she was simply unaware of the importance of a thorough estate plan. In either case, the result was the same.
Her self-prepared will was vague and left many unanswered questions. Lengthy court proceedings were necessary and, as a result, a substantial amount of the money that she intended to go to the charities was spent on court proceedings in an attempt to decipher her intentions.
When you have spent a lifetime saving to provide for your family, or to donate to your favorite charities, you want to ensure that your assets are properly distributed to your beneficiaries. While your intended beneficiaries still typically receive your property, even if you pass without a comprehensive estate plan, the distribution may not follow your actual intentions. Furthermore, some of your assets may become unnecessarily tied up in probate, delaying your beneficiaries’ ability to enjoy the legacy you leave for them.
The laws of distribution when there is not an enforceable will can lead to unfortunate results. Widows may end up owning their family home with stepchildren who force them to move out and sell, or the surviving child of an unmarried couple, who has lived together for decades but remain unmarried because of social security laws, could lose their home to their heirs of the first to die. The potential pitfalls are not only numerous, but dramatic.
California’s Probate Code controls the disposition of property not covered by a valid will. This can include cases where there is no will, cases in which a will is incomplete and does not address all the property in the estate, or in the case of my philanthropic client, when the will is invalid. Here is what generally happens when you pass without an enforceable estate plan:
A surviving spouse or domestic partner is entitled to all of the deceased’s non-community property if the person had no surviving parents, siblings, children or grandchildren.
If the deceased does leave a surviving parent or parents, siblings or half-siblings, or just one surviving child or grandchild, the surviving spouse or domestic partner is entitled to half of the non-community property.
The surviving spouse or domestic partner is entitled to one-third of the non-community property if the deceased was survived by more than one child, one child and one or more grandchildren, or grandchildren from two or more predeceased children.
Any portion that does not go to a spouse or domestic partner goes first to children and other issue by degrees, then to the parents if there are no descendants, then to siblings and half-siblings if there are no surviving parents.
These rules continue from this point and become more complicated as they advance into more remote areas of the family tree. They do not, however, take into account any wishes the deceased expressed – including planned charitable giving – except through a valid will. This is just one of the many reasons that you should consult a skilled professional to protect your life’s work for your intended heirs and beneficiaries.
Larry R. Cox is an estate planning and probate attorney at Young Wooldridge, LLP. He has more than 35 years of experience assisting clients with their estate planning needs and has the ability to resolve most matters without the time and expense pf a long court experience. Contact us today for a free consultation.