Category Archives: Wills, Trusts & Estates

Wills and Estates

edwardbrooke22.jpgI was estranged from my Mother who passed away recently, is someone obligated to let me know details of the will? As a youngster I was hit by a car, my parents sued on my behalf, 50 years later I have never received a penny every time I asked my Mother she would change the subject, Was wondering if it’s a waste of time to pursue this as I have permanent damage to the leg that was broken in the accident
            You have two separate issues here: Did your mother leave a valid will and how can you recover the damages award received in a personal injury action many years ago. In all likelihood, your award was an “Infant Compromise” and the funds should have been placed in a restricted account for your benefit when you came of age. That’s how the theory goes. Often parents do not follow these rules and, since the Court has little enforcement power, the award is misappropriated. Sadly, after so many years, its very likely that none of these funds survived.

Regarding your mother’s will: check with the local Probate & Family court to see if a will has been presented for probate. If you know or can find out the name of the lawyer who prepared the will, you can try to contact him/her. The Executor of the will is obligated to contact each party named in the will and inform them of the probate proceedings. Bear in mind,though, that even if your mother does have a will, there is no law requiring her to leave you a part of her estate.
But you still have a few options: If there is a will and you are not named, you can still sue the estate for recovery of the personal injury damages award you never received. If there is no will, you can seek your portion of the intestate division of the estate.
You must speak with a lawyer to explore your rights and obligations.

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Are Online Wills Legal?

Online wills CAN be legal, but…The baseline for a valid will is PROPER EXECUTION. Each state has its own specific rules of procedure, so you should speak with a local counselor or look up your state laws online.  Be sure you are using an online form that complies with state requirements. Essentially, all states require that the Testator (you) acknowledge that this is a last will and testament, that you sign it at the end of all the pages, that it be witnessed by at least two disinterested people. Some states do not recognize “holographic” will–meaning handwritten, except from soldiers in battle conditions and a few other rare exceptions.  No state recognized “noncupative” will — oral statements alleging to be the spoken wishes of the decedent.

The courts are reluctant to discard any writing that appears to be the wishes of a decedent, but that won’t stop someone from challenging the will.  Then it will involve litigation. A good scribe of a Will knows how to avoid unnecessary litigation and should set up a distribution that can go as smooth and seamless as possible under the circumstances.

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However, the cost of having a will prepared is usually very reasonable and well worth it for the peace of mind of knowing your paperwork is all in order. A will and a Living Will (Health care proxy) are very affordable. Why skimp on something so important.

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3 Siblings Made Up a Will after Father Died. What is the Possible Penalty?

Forgery and fraud are crimes–serious crimes, and they carry serious criminal penalties. Lying to the tribunal, by submitting falsified papers, can give rise to civil and criminal contempt charges as well as subject one to fines, and/or incarceration.

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When a person dies without a Will, they are deemed to be “intestate” (without a ‘testament’).  The courts have devised a “scheme” or plan for distribution of the assets of an intestate decedent predicated upon the surviving relatives. This is called the “Intestate Distribution Scheme”: A wife, if she survives the Husband is first to “take” (a legal expression that means when an heir can convey property from the decedent’s estate to the heir’s, with the permission of the Court.).  Wife will get the entire estate, if there are no children.  If children, then Wife gets the first $50,000 and one half of everything else; the children get the remainder of the estate divided equally among them.  The plan goes on: if no children or spouse, then grandparents, then nephews and nieces, and so on. It should be noted that a person must be alive and survive the decedent to be eligible to “take” ; a divorce severs all rights of the ex-spouse to any claim to the estate,

The irony, under the facts your question included, is that the 3 siblings who conspired to forge their father’s Will would, under the intestacy distribution plans, have inherited in equal part the whole of the estate–legally–without risking recriminations. Crime doesn’t pay.  Don’t be tempted.  A Will is an inexpensive way to assure that your wishes for distribution of your property after death are reasonably observed.

Everyone has an “estate”–it may be large or small.  Simplify the life of your survivors by getting a Will done sooner, rather than later. Don’t tempt your children to forge one.  Consult with an attorney about having a Will drafted today!

 

How is an inheritance treated in a divorce?

Generally, inheritances are not subject to equitable distribution because, by law, inheritances are not considered marital property. Instead, inheritances are treated as separate property belonging to the person who received the inheritance, and therefore may not be divided between the parties in a divorce.

However, state laws determine how an inheritance is treated in a divorce based upon how it was treated by the heir upon receipt of the asset(s).  If it’s “shared”, the rules vary greatly among the states. For instance, if the inheritance is deposited into a joint bank account and used for joint marital expenses (called “comingling of the inheritance”), the inheritance loses its immunity. Likewise, if the inheritance is used to make improvements to the primary residence, it may also lose its immunity.

Therefore, comingling is key — if this “separate property” is used in a way that benefits joint marital assets, the inheritance is no longer considered separate property, and may be subject to equal division upon divorce.

If this inheritance has never been commingled with marital assets, a divorcing spouse will have no right for inclusion in the distribution.

If the inheritance was acquired before the marriage, it is advisable to have a pre-nuptial agreement that specifies the property is not a joint or marital asset.  However, the same rules of comingling will still apply if the assets are joined with other marital funds or used as marital property.

This issue is fact-specific and subject to state law, so it is advisable to contact a  local divorce attorney to review your facts and circumstances to best advise you of your legal options.

Is a Will still binding after 50 years?

A Will does not expire due to age or length of time since it was executed. There are very specific procedures required to void a will. If these formalities were not used, the Will is presumably valid, if valid at time of execution.  A Will, as we say in law, “walks with the testator”–that means it is valid, but not enforceable until the testator passes.

If you have a copy of the will, I suggest you take it to a local estate’s attorney. If you do not have a copy, you can do a will search in the probate court where the decedent lived or was living at the time of the writing. If neither of these are an option, you will have a harder time locating the will, if it still exists. The decedent may have destroyed it or written a new will once married. If you know the lawyer who may have drafted the Will, try to contact him/her.

If no will can be located, the court may distribute under “Intestacy” succession–which is a scheme set out by the state to distribute property of a person who died without a will.

Speak to an attorney who can assist you in locating the will and what options exist in the absence of a will.

What can my sister do? I think she has been defrauded of her shares in my mother’s estate.

Under your facts, your niece made promises of future financial and personal services to your sister in exchange for your sister presently gifting her share of your mother’s estate to the niece.  The promises were never kept and your sister is left with nothing.

Your sister’s problem is that all of these promises were verbal, and your niece can invoke legal defenses (such as the statutes of fraud) to fend off any legal claims. Further, if the life insurance policy named the niece as sole beneficiary, she alone is entitled to the death benefits.

These verbal promises, however, were quasi contractual agreements; that is, a court could find that a contract was implied by the conduct of the parties. This is an “equitable” remedy, which is to say —in the interest of justice–argument. There may also be elements of fraud and/or fraud in the inducement.

Your sister should speak to a CA lawyer familiar with contract and tort laws in resident state of your niece. It is possible to seek damages or restitution from your niece, but it will need a skilled lawyer to frame the argument.

Should gay unmarried couples who wish to name each other as executor in their wills, etc use terms such as “partner” or “life partner?”

 

Name your personal representative  or Executor in your Will; your relationship to the person is irrelevant. Be sure to properly identify him/her, including address and contact information. Prepare a living will (health proxy) to identify who can make end-of-life medical decisions in the event you are incapacitated. Have a power of attorney drawn up too. All of these documents can be prepared quickly by a good lawyer, and you will have peace of mind.

Estate Planning documents should be reviewed periodically and updates, as changes in circumstances require.

If you are contemplating having a will or living will prepared, please contact Matta Law office for a free consultation.

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My wife and I state in our Will that house goes to all our children, but one of them is not to be made to leave.

Unfortunately, the proposal you have stated is unworkable, or at the very least creates problems down the road. You are essentially burdening all the siblings for the benefit of one. This is certainly contestable, and in all likelihood will incur a lot of cost and dissipation of the estate–not to mention the animosity it might fuel among the siblings.

If your intentions are to protect one child, you should consider giving him/her a “life estate”: the property is conveyed to the X for life, then to u, v, and z (whomever you wish, as remaindermen). This insures that child X can have use and enjoyment of the property for life, cannot alienate (sell) the property, and the remaindermen siblings will take the property at the end of the life term. The party with use and enjoy assumes all the responsibilities of ownership (taxes, maintenance, etc) as well as insuring the property is preserved for the remainders to take.

You should definitely speak to an estate planning attorney to review your options and address your concerns more specifically. If this is already stated in your will, you must seriously reconsider what you have structured (and use a different lawyer, if this Will was prepared by counsel). In my years of probating estates, I have found that most problems arise when the distributions, as expressed in the Will, were not properly screened by the scribing attorney for feasibility and ease of probating.
I urge you to consult a lawyer.

 

This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this answer does not create an attorney-client relationship. If you wish to obtain legal advice specific to your case, please consult with a local attorney.  Matta Law – the Law office of Estela Matta, Esq. offers a free half hour consultation.