Tag Archives: Will

Dying without a Will in California

If a resident of California passes away without having an executing a will or revocable living trust, California has an entire set of laws in the Probate Code, known as “intestacy” to determine who will get your estate. The intestate laws have a series of questions to be answered do determine who can inherit the estate.

Whether or not the person is married is the first major question.

Persons Not Married At Death (Includes Single Persons, Divorced Persons, and Widows/Widowers)

If the person was not married the estate is inherited as follows:

1. If there were children in the same generation, they take equal shares of the estate.

2. If there were no children, grandchildren, great-grandchildren, etc; then the estate will be inherited by the parents of the deceased.

3. If the deceased does not have any living parents then the estate is given to the brothers or sisters of the deceased. If the brothers or sisters have passed away and had an “issue,” the issue will be able to inherit whatever amount would have been inherited if the brother or sister had been alive.

4. If there are no brothers or sisters the grandparents shall inherit the estate of the deceased.

5. If there are no living grandparents, the issue of the grandparents shall inherit the estate. This may entail the deceased aunts or uncles, and if there are no aunts or uncles then the decedent’s cousins may be entitled to the estate.

6. If there are no cousins then according to the Probate Code 6402, the estate shall be given to the next of kin in equal degree.

Persons Who Are Married At Death

If the person was married at death, then there are two sets of questions to ask to determine who will get that person’s estate.

First, the main question is whether the deceased owned community property, separate property or a mix of both types of property. A simple definition of community property is the assets and earnings that the deceased had earned during the time of the marriage and the separate property is the assets that were brought into the marriage in the beginning.  California has very diverse definitions of these and separate property and community properties may be intertwined and mixed together to provide some benefits. The following are the steps and rules that are to be followed;

1. The community property of the deceased shall go to the spouse, once a spousal property petition is established.

2. The separate property of the deceased shall be distributed as follows;

A. The spouse is entitled to the separate property if the deceased is not survived by parents, brothers or sisters, or children of a brother or sister that have passed away.

B. The spouse is entitled to half of the separate property if the deceased had only one child or had an issue of a child that had passed away.

C. The spouse is entitled to half of the separate property if the deceased had left no issue, but had left parents or an issue of the parents.

D. The spouse is entitled to one third of the separate property if the deceased had left more than one child.

E. The spouse is entitled to one third of the separate property if the deceased had left one child and the issue of one or more children.

F. The spouse is entitled to one third of the separate property if the deceased had left two or more issues of children.

These are the default rules if you do not have a will or revocable living trust in place. The intestacy laws show how important a will can be if you want your estate to go to people who are not listed in article (i.e., non-spouses, friends, distant relatives). Please contact Attorney Anthony Marinaccio at 818-839-5220 for more information.

Holding Title as Joint Tenants

Joint Tenancy is a type of ownership of real estate by two or more persons in which each owns an undivided interest in the whole property. Joint tenancy is often touted as one method of estate planning; however, there are consequences you may not be aware of that could not make it the best option available.

When a joint tenant dies, the interest in the property is then vested into the interest of the surviving joint tenant or joint tenants. Simply put, if one of two joint tenants passes away, the second party of the joint tenancy gains all the percentage of interest of the party who passed away and has one hundred percent of the property.

In order for the property to pass the surviving joint tenant, the surviving joint tenant would be required to record an Affidavit of Death of Joint Tenant with a copy of the deceased joint tenant’s death certificate. It avoids probate and trust administration, and is a relatively short and easy process to acquire property after a death.

A joint tenant cannot pass on the property through a will or revocable living trust, so there are no other options as to who will receive the property except to the surviving joint tenants.

One of the main drawbacks in owning a property in joint tenancy is that any joint tenant can file a partition action to force the sale of the property. Further, if a joint tenant has a judgment against him or her, that judgment can attach to the property.

I generally do not recommend using joint tenancy as an estate planning tool but to draft a will and revocable living trust because ultimately it gives you control during your lifetime without relinquishing that control to another. Further, if there is a dispute between you and your joint tenants, any joint tenant can file a partition lawsuit and require that the property be sold, even if you live on the property.

Please contact Attorney Anthony Marinaccio at 818-839-5220 for more information regarding joint tenancy properties.

Estate Planning for Childless Couples

The Wall Street Journal recently had an article entitled “Estate Planning for Childless Couples” that emphasizes the importance of different estate planning tools for your personal situation. I often tell people who do not have children that estate planning may have even more important repercussions for them than people with children because if you die without a will, the State of California decides who will inherit your estate through intestacy laws.

If you die without a will, you are said to have died “intestate.” The Probate Code sets forth who would receive your estate. If you die without a will only family members will be able to inherit (even long lost ones). Therefore, it is sometimes more important for persons without children to have an estate plan.

The Wall Street Journal article highlights why having a plan is important particularly if you want to leave your estate to close friends or a charity. Both categories would not receive anything if you die without a will. It would also be important to create a revocable living trust for the same reasons anyone should – namely to avoid probate.

It is also very important for childless couples to address a power of attorney and advanced healthcare directive because without one, decisions that need to be made if you are incapacitated will most likely be left to strangers.

For these reasons a couple that does not have any children should address all of these issues in their estate plan. Attorney Anthony Marinaccio can properly advise you for your particular situation if you have any questions or concerns. Please contact him at (818) 839-5220. 

6 Estate Planning Moves You Should Make in Your 30s

Daily Finance has an interesting article for estate planning that should be addressed in your 30s. Estate planning is often equated with older people; however, there can be some estate planning moves that you can make as you are younger that might make sense. In addition to having a will, a revocable living trust, a healthcare directive, and a power of attorney, the article also talks about planning for retirement.

The article is 6 Estate Planning Moves You Should Make in Your 30s.

Estate Planning for Young Families

Many couples with young children or those without children yet do not think estate planning is for them. Estate planning is often associated with old people or those with large estates. However, estate planning is important for young families just as it is for older people and those with lots of assets. Unfortunately, even a young adult can face an untimely death or disability. Planning for that possibility, although not a pretty or fun thought, is both prudent and responsible.

Estate planning for a young family is not expensive and offers many benefits if a death or illness occurs. In addition to an estate plan, a young couple should look into insurance needs — life insurance, long term care insurance, and disability insurance.

Here are some of the essential parts of an estate for a young couple:

Who will handle my estate?

An executor handles an estate after someone dies. If you decide you need a revocable living trust, a trustee does something similar after you die. In both examples, the executor or trustee handle the financial affairs of the estate until it closes, including finding assets, paying bills, and finally distributing assets. Although for most couples, the executor is the spouse of the deceased there may be reasons you want someone else. In any event, it is always good to have a backup, known as a successor if the original executor or trustee cannot serve.

Who will be the guardian to my children?

The naming of a guardian is perhaps the most important reason for a young couple with few assets to have a will. Without a will, the court will appoint a guardian which can lead to ugly family battles to decide who will care for your children. It is important to name a guardian. A revocable living trust cannot name a guardian for minor children – only a will can.

There are two parts of being a guardian – one is for the child’s well being and one is for the child’s financial affairs. You can have one guardian who does both or decide only one is necessary.

How will my assets be distributed? 

Although most couples leave all assets to the surviving spouse, an estate plan also aids in determining how and if children will receive any of your assets.

Insurance Needs

Insurance is an important aspect of an estate plan because it addresses what happens if there is a loss of income due to a death or disability. Since I am not an insurance salesman or financial planner, I do not give advice on what you may or may not need. However, it is important to plan for unexpected events by purchasing life insurance (either whole life or term), disability insurance, and/or long term care insurance. There are lots of options out there, so you should sit with a qualified financial planner or insurance salesperson to decide what is needed.


Memorial Day Weekend Discounts

For Memorial Day, Marinaccio Law is offering a 10% discount on all estate planning services for current U.S. military, U.S. military veterans, and law enforcement. Marinaccio Law offers a variety of services for estate planning, including drafting revocable living trusts, wills, advanced healthcare directives, and powers of attorney. This discount is good through May 30, 2014.

Please contact Attorney Anthony Marinaccio at (818) 839-5220 for more information.

Mickey Rooney’s Estate Dispute

A death in the family can bring out many emotions, and when wishes are unclear in an estate plan, some of those emotions can boil over among family members even when determining burial and funeral arrangements. After only five days that famous actor Mickey Rooney had died, his family was in Los Angeles County Superior Court to determine where he would be buried; however, they reached a settlement prior to the hearing.

Mickey Rooney’s estate plan was not your typical estate plan because he had disinherited his nine children, all grandchildren, and his current wife. Also, his net worth was only estimated to be about $18,000, and his estate most likely will not receive any royalties from his 80+ year career because many of the older Hollywood contracts did not provide for royalties. Perhaps his largest asset (if you could call it that) was a judgment against his step son for $2.86 million stemming from an elder abuse lawsuit. Rooney claimed his stepson lived a lavish style while draining all of Rooney’s finances. However, his stepson claims he does not have the money, so the judgment may never be recoverable.

This same stepson and his current estranged wife went to Los Angeles Superior Court to demand that the Court require Mickey Rooney’s body be buried in a family plot next to his estranged wife when she dies. This estranged wife’s other son, who is also the executor of Mickey Rooney’s estate, opposed such a demand. Although they settled the matter, Rooney’s estranged wife is still fighting that the will is invalid claiming it was written with “undue influence” and that Mickey Rooney lacked capacity.

This case is prime example of how estate planning disputes are not just over money, and sometimes can be fought even when there is no money. Particularly in light of the elder abuse claim against one stepson, Mickey Rooney’s estate plan should have addressed such issues as burial.

Important Estate Planning Questions for Spouses

Dailyfinance.com has an interesting article entitled 3 Important Estate Planning Questions which provides three questions that are important for all spouses to discuss when drafting an estate plan.

The first question, “How well does my spouse know our financial advisor?” is a good question to discuss how both spouses should know their “estate planning” team. Although the article limits itself to a financial advisor, the same could be said for a couple’s estate planning attorney and other important persons who may be in charge of finances for a couple.

The second question, “Does my spouse know where all our accounts are and how to access them?” is also a very important discussion to have. Particularly in the era of online accounts and e-mail notifications of statements, it is important to have a depository of accounts and login information. After one spouse’s death, there can be confusion as to where accounts are, the amounts in those accounts, and whether there are additional accounts. This may be particularly important if there are living expenses that still need to be paid for in addition to funeral and burial costs.

Finally, “Are our wills and beneficiary designations up to date?” This question has important estate planning repercussions. It is somewhat common to forget that estate planning can be more of a process and not a one time event. Grandchildren are born, executors die, property gets moved around, and accounts change. These issues can all be important. It is also important to not just think of your will as your estate plan, but also beneficiary designations on accounts. For example, a 401(k) account has a beneficiary designation that you must designate.

These important questions are vital to an estate plan being executed smoothly or whether there would be confusion after a death. A consultation with an estate planning attorney can be an important step in getting an estate plan completed or updating it.

Mickey Rooney’s Estate Planning Dispute

The New York Daily News writes about an estate planning dispute of Mickey Rooney that has boiled over only days after his death. The article can be found here.

Mickey Rooney had disinherited his eighth wife, who he was married to for 35 years but also estranged. He had also sued her and her biological son (his stepson) in 2011 for elder abuse claiming they were stealing money from him. She had requested his remains from the mortuary in order to bury him. Mickey Rooney’s estate has filed a motion in order to prevent Forest Lawn Memorial Park from releasing the remains to his estranged wife.

Recently, Mickey Rooney had signed a new will leaving all of his estate to one stepson, Mark Aber. His estate may only be valued at around $18,000. Potentially the only valuable asset in Mickey Rooney’s estate is a judgment against his estranged wife.  He had disinherited his eight children believing they were in a better economic position than the late actor. 

This dispute highlights the need for good estate planning that can help to prevent this situation. Although the details of Mickey Rooney’s will are unknown, a dispute is already brewing.



Why Hiring an Attorney Can Save You Money on Your Estate Plan

Forbes has an interesting article, Careful, Thoughtful Drafting Essential in Estate PlanningIt provides an interesting glimpse into do-it-yourself estate plans with the advice of an attorney.

In California, a person can draft their own will in their own handwriting and can even draft a “statutory will” that is a fill-in-the blanks will (there are certain rules and exceptions to drafting your own wills). However, the advice of an attorney can be essential in drafting important documents to ensure property gets passed on properly to the people you want.

If a will is found to be invalid, California’ intestacy laws will apply, which may go against your original wishes. The article highlights the issue of leaving a blank on a form will and how it can cause a large problem. In this case, an heir died prior to the will drafter causing a dispute between the deceased’s brother and her nieces from another brother. There was also an issue of a handwritten codicil, or amendment to a will.

If the parties had spoken to an attorney when drafting their estate planning documents, they could have saved money and time that occurred during the legal dispute to determine who would receive the estate. The article highlights why spending a little money upfront can save significant legal bills in the future.