Why the Holidays Are a Good Time to Bring up Estate Planning to Your Family

Estate planning is not a topic most families discuss during the holidays. However, the holidays are an excellent time to bring up estate planning with your family for several reasons. During the holidays, you have a better chance of gathering all family members in the same location to have an in-person conversation. 

Additionally, the holidays provide an easy intro to discussing an estate plan. You can begin by telling your family how much you love and appreciate them and transition into your desire to protect them even after your death. Our California estate planning attorney offers tips and suggestions for discussing estate planning during the holidays in this blog. 

Tips for Using the Holidays to Bring up Estate Planning to Your Family

It is probably not polite to bring up estate planning during your holiday meal or when everyone is gathered to open gifts. Therefore, you need to time your discussion about estate planning. Generally, a good time to discuss estate planning is after everyone has eaten and the festivities have wound down. People are relaxed and engaging in general conversation.

Things to keep in mind as you prepare to discuss estate planning over the holidays include:

  • Have a strong introduction to the topic. If you can use an example, that would be helpful. For example, explain the challenges a family faced when a co-worker had a family member die without an estate plan.
  • Plan your talking points in advance. Topics to cover when discussing estate planning include medical decisions, insurance, Will, trusts, taxes, and roles in the estate plan (i.e., guardians, trustees, personal representatives, powers of attorney, etc.).
  • Offer to help family members who have not started their estate plan and provide family members with resources they can use, such as checklists, articles, and the name of your estate planning attorney.
  • Focus the conversations on your desire to be prepared so you can provide for your family members and reduce the stress of probating an estate. Avoid discussing your death in detail. Instead, focus on how having an estate plan means you control what happens to your property. Otherwise, the California intestate laws determine who your estate is divided and who can receive a share. 
  • Explain that discussing estate planning is much more than discussing which family members get what property. It is a way to show that you care about your loved ones and prepare for unexpected events. 

You should be prepared to answer questions about your estate plan and estate planning in general. Therefore, you may want to meet with your estate planning lawyer several weeks before the holidays to review your estate plan. During your meeting, your attorney can provide information you can use to answer questions about estate planning and how to address specific topics that might arise during the discussion. 

Schedule a Free Consultation With Our California Estate Planning Attorney to Learn More 

Estate planning can be a challenging topic for families. Our California estate planning attorney at Loew Law Group can help you prioritize the topics you need to discuss with your family and offer suggestions for making the conversation less stressful for all parties. Call our office to schedule a free consultation with an attorney to discuss an estate plan to protect your family and property now and after your death.

Three Things You Need to Know About Cryptocurrency and Your Estate Plan

Cryptocurrency is somewhat trendy, leading some to consider including cryptocurrency in their estate planning. You need to understand the tax consequences, legal issues, and how you hold your cryptocurrency if you plan to include it in your estate plan.

By the time you read this article, some of the laws concerning cryptocurrency will likely have changed. With legal matters in such a state of flux, you will want to work closely with a California estate planning attorney if you intend to have an estate plan that includes cryptocurrency. Here are three things you need to know about cryptocurrency and your estate plan:

Where or How You Store Your Cryptocurrency

Every now and then, a story hits the news about someone who died and their heirs could not access their cryptocurrency, even though the decedent intended to leave the cryptocurrency to their loved ones. You could have $1 billion worth of cryptocurrency, but if you do not make a plan for how your estate or beneficiaries will access these assets after your death, it could all be lost.

There are several options of how to store or hold your cryptocurrency, including a custodial wallet with a third-party like a crypto exchange; a cold wallet like a USB drive; a paper wallet that is actually a print-out of your crypto keys; and a hot wallet, in which you store your crypto online. Each of these options has a different level of risk if someone wants to steal your crypto. 

For purposes of your estate planning, you will want to address two issues of cryptocurrency. One, choose a storage type that provides reasonable safeguards to prevent theft, either physical theft or hacking. Two, you need to include instructions on how to access the crypto. These instructions should be made a part of your estate plan. Obviously, since wills have to get filed in court, you do not want to include the instructions in a will.

Legal Issues of Cryptocurrency and Estate Planning

One of the original appeals of cryptocurrency was the claim that no government and no laws could control cryptocurrency. While that was never quite accurate, it is becoming less accurate with every passing day. 

Legislatures worldwide are struggling to understand and regulate cryptocurrency. As the laws governing cryptocurrency evolve, you will want to keep on top of any legal developments and evaluate how those laws could impact the value of using cryptocurrency in your estate plan. One way to accomplish that goal is to work with a California estate planning attorney who understands cryptocurrency laws.

Tax Consequences of Cryptocurrency

A lot of people claimed that no government could impose taxes on cryptocurrency because it operated outside of any geographic territory, thereby leaving no country with jurisdiction over the asset. In reality, buying, selling, and trading cryptocurrency can and does have tax consequences. Also, using cryptocurrency to purchase items can have tax consequences. Governments are getting better at tracking these transactions. If cryptocurrency is a part of your estate plan and your estate gets hit with a large tax bill for unpaid tax obligations, this tax liability could diminish the size of your estate and decrease the amount of assets you can pass on to your loved ones. You will want to talk to a California estate planning attorney about the issues inherent in using cryptocurrency in your estate plan. Get in touch with our office today for legal assistance, we gladly offer a free consultation.

How Do I Leave Assets to Minors in California?

When preparing an estate plan, special care is needed where a person wishes to leave assets to a minor. This is because asset or property transfers to a minor are often governed by the California Uniform Transfers to Minors Act (UTMA). Our California estate planning attorney can answer any questions you may have about how to leave assets to a minor in California.

What Is the California UTMA?

The California UTMA is a law that mirrors similar laws in other states. It provides that to transfer property to a minor, a person needs to choose a custodian to manage the property until that minor reaches a specific age, between 18 to 25. So, if you wish to leave assets to a minor in your will or trust, you may need to consider who will be the custodian for that bequest.

A custodian will have the ability and right to control the assets and manage them for the minor until that minor reaches the specified age. So, for example, the custodian could invest or reinvest the property with minimal oversight from anyone else once the custodial account or other mechanism is established.

When the minor reaches the specified age, the custodial relationship ends, and the minor gains control of the property or asset. Once they have control, there are no further restrictions on how they may use the assets.

The Interplay of the California UTMA and Your Estate

Even if you don’t use the California UTMA to leave assets to a minor in your will or trust, the executor of the will or trustee of the trust can use it. This is because it is often the simplest way to transfer property you bequeathed to a minor. If the assets you have left are less than $10,000, the transfer can be done without court involvement in California. Where the property is more than $10,000, then the court must approve the custodial arrangement, with certain exceptions.

Alternatively, you can use a trust to leave assets to a minor. A trust allows you to control the specifics of when and how a minor receives assets. It may also have tax advantages. There are many ways to accomplish this. You can create a trust for each minor or establish one family trust to provide for multiple minors.

When creating a trust, you choose a trustee to manage the assets and carry out the terms of the trust. Using a trust is an excellent way to provide for minors because it allows you to decide the amount and timing of distributions to children and what kind of things the trust can pay for. You may want the funds to be used for education or medical expenses. Or you may wish for the trust to provide more for a minor with unique or special needs. 

A trust can also be an attractive option because you can delay when a minor gets control of assets beyond age 25. For example, you can choose for a beneficiary not to have full access until age 35, or to gradual access as they reach certain birthdates. You can even provide that a trustee will manage the assets for the rest of that person’s life.  These may be good options if you have concerns about a person’s maturity or financial savviness. 

However, the structure of the trust you use does matter when it comes to accomplishing these goals. It is best to speak with a qualified estate planning attorney.

Speak With an Attorney 

You may have many options for leaving assets to a minor. Every case is different, and an estate planning attorney can tailor your estate plan to your personal needs. We invite you to contact our office today for a free consultation. We can help you develop an estate plan that works for you and your loved ones.

Three EASY Asset Protection Tips You Can Use RIGHT NOW

You may have heard about asset protection planning and assume it only applies to very wealthy individuals or people in high-risk professions. In reality, asset protection is not only about protecting your assets from creditors. It can also protect you and your loved ones from unforeseen events. Our experienced California estate planning attorney can evaluate if you may benefit from asset protection planning

Tip 1- Make Sure You Have Good Liability Insurance

One of the simplest things you can do to protect your assets is to get an umbrella insurance policy. Umbrella insurance can help protect you from claims that can happen to anyone, such as a car accident, an injury on your property, and much more. It can help cover any monetary damages you may be responsible for, plus some of your legal costs. Umbrella policies are often inexpensive and straightforward to obtain and can be bundled with existing insurances you already have. 

Tip 2- Contribute as Much as You Can to Your Retirement 

Qualified retirement accounts such as 401(k)s and IRAs are often exempt from the reach of creditors, even in bankruptcy. If you can save more money in a retirement account as opposed to a brokerage account or regular savings, you are not only planning for your golden years but also keeping these funds out of the hands of creditors or people looking to take advantage of you. Anyone with a qualified retirement account can employ this strategy regardless of whether they work for themselves or are a company employee.

Tip 3- Hold Investment Property in an Appropriate Business Structure

Unexpected accidents or injuries can occur on a property. The law will hold the owner liable for events on a property, sometimes regardless of fault. This state of affairs can encourage frivolous lawsuits, which can put property owners, and their assets, at risk. If you are liable for an injury or accident on your investment property, the plaintiff can enforce their claim against any other property you own, your bank accounts and more. 

A simple way to shield your assets is to hold the property in a business entity. Many options, such as an LLC, Corporation, General Partnership, Limited Partnership, and more, may be available. Each entity may have different pros and cons, such as asset protection, tax benefits, and differing levels of liability for members, partners, or shareholders. The advantage of using one of these structures to hold your investment is that an individual owner’s assets may have a degree of separation, and the risk of their attachment may be significantly diminished. 

Speak With an Attorney

The worst thing you can do is do nothing at all. If you have any assets, you should take steps to protect yourself and everything you have worked so hard for. Although thinking about asset protection may feel overwhelming, doing nothing can financially ruin you. A qualified attorney can help you navigate this process. Not every situation warrants the same asset protection solution. If you need assistance with asset protection in California, please get in touch with our office today for a free consultation.

Five Hidden Traps in Outdated Living Trusts

If your living trust is five or 10 years old or more, it might look fine on its face.  But there may be problems hiding within your estate plan that will rear their ugly heads when it is time to put your trust document into action. The time to fix these issues is now, before they cause headaches for your heirs and beneficiaries. 

A California trust attorney can help you update your documents and answer your questions about changes you might need to make. Let’s go over five hidden traps in outdated living trusts. 

State and Federal Tax Laws Change

State and federal laws that can affect the tax treatment of assets are constantly changing. Even in years when the tax code itself does not change, previous changes to the tax law get phased in over quite a few years. In other words, a change to the tax law in one year can make things different every year or so for the next five years or more. 

Your estate planning documents, including your living trust, should strive to maximize the benefits of current tax law. However, since the tax law is a moving target, your attorney may need to tweak your living trust periodically to keep it running optimally. You could view these updates like taking your car in for a tune-up.

Your Assets and Family Situation May Have Changed

Your living trust can only manage and distribute assets that you title in the name of the trust. Think about the assets you had 10 or 15 years ago. How many of those things do you still own? Are all of your current assets part of your living trust?

Some of your assets, like your retirement account, have likely increased in value significantly since the drafting of your current living trust. You will want to make sure that you evaluate the current values of all your assets when considering the fairness of the distributions to your beneficiaries.

The Federal Estate Tax Cutoff is Different

For many people, their estate plan involves trying to minimize estate taxes by engaging in gifting during their lifetime and charitable contributions. You will want to review your living trust in light of the current federal estate tax cut-off and the anticipated changes to the amount of value your estate can have before federal estate taxes apply.

Your Goals Have Changed

What you wanted to accomplish when you initially set up your living trust has likely changed over the years. Let’s say that you had kids in high school when you created your original living trust. Twenty years down the road, you are probably less focused on making sure they can go to college. You might want to re-shuffle the deck to create a longer legacy plan, including providing for your grandchildren. 

Your Marital Status Can Change

After the passing of 10 or 20 years, the marital status of people in your family might have changed. You might have divorced or remarried in that time. One or more of your children or other beneficiaries might have married, had children, or divorced. Your older living trust was a snapshot of your life and the people who were important to you at that time. You will now want to update your trust to make sure it will accomplish your new goals based on your current situation. You should contact a California estate planning attorney to get started. Contact our office today for help, we offer a free consultation.

Investing in Cryptocurrency: The Hot Tax and Estate Planning Issues

Investing in cryptocurrency is a trend that appeals to many because banks and governments cannot directly control this asset, and there is a limited level of privacy involved in its ownership and financial transactions that use crypto. The Internal Revenue Service (IRS), however, takes taxation issues of crypto quite seriously.

Also, there are things you need to know if you intend to include cryptocurrency in your estate plan. A California estate planning attorney can answer your questions about investing in cryptocurrency.

An Overview of Cryptocurrency

If you are considering investing in cryptocurrency and leaving it to your heirs in your estate, you need to understand what it is and how it can affect your tax basis.

Cryptocurrency is a type of digital asset that uses cryptography to secure its transactions and to control the creation of new units. Cryptocurrency is decentralized, meaning it is not subject to government or financial institution control. Bitcoin, the first and most well-known cryptocurrency, was created in 2009. Cryptocurrencies are often traded on decentralized exchanges and can also be used to purchase goods and services. 

Understanding the Tax Implications and Security Risks of Cryptocurrency Investments

Some investors hold cryptocurrency as a long-term investment, while others trade it frequently in an attempt to generate short-term profits. When cryptocurrency is held as an investment, it may appreciate or depreciate in value and can be subject to volatility. When cryptocurrency is exchanged for goods or services, any resulting gains or losses could be taxable. As with any investment, you should consult with a tax advisor to determine how cryptocurrency would impact your tax liability.

It is easy to steal cryptocurrency or to lose it forever. Someone merely needs to get hold of your crypto key, the 64-digit code that is the password to your crypto. When someone obtains that password, they then have control over your crypto. Since you cannot access your crypto without the key, if you lose that precious 64-digit code, you have lost the asset itself. You cannot get a new key for the asset. Imagine if you lost your house key, and the result was that you no longer owned your house.

Taxation Issues of Cryptocurrency

Crypto gets taxed just like any other financial transaction with other parties. If someone pays you more than $600 worth of cryptocurrency for services or goods, you have to disclose that on your tax return. If you buy crypto and then sell it at a higher price than you paid for it, you have a taxable gain. 

Crypto has a fair market value (FMV) that can determine the amount of taxes due. Even though the FMV fluctuates constantly, so does the stock market, and buying, selling, and inheriting shares of stock can have tax consequences. 

Including Crypto in Your Estate Plan

It could be challenging to transfer your crypto to your heirs after your death because they will have to get your 64-digit key. You should never include the key code in your will or trust because anyone who sees your documents could steal the asset using the key. If you write the code on a piece of paper and store it in your file cabinet at home, a house fire could destroy your ownership of the crypto.

Your options are to:

  • use a “wallet” to store your key code instead of writing your code on paper or giving the key to a friend or relative and hoping that they never succumb to temptation. “Hardware” wallets are physical devices that store your key code, like a USB thumb drive, but those can get lost or be stolen.
  • Using a secure, cloud-based password storage software is an option, but again, someone must know where to look to access your key. 
  • Finally, as recent news reports demonstrate, an investment in cryptocurrency could lose some or even all of its value, if the fundamentals of the company issuing the cryptocurrency prove to be unsound.  

Contact an Experienced Attorney Today

You should always seek advice from a licensed financial advisor and investigate any investment before proceeding. But with crypto it’s especially important that you plan even for worst-case scenarios. By diversifying your investments across different types of assets you may best ensure that your assets are preserved, even if some of those investments fail to turn a profit. Talk to a California estate planning attorney about tax questions and adding cryptocurrency to your estate plan. Contact our office today for legal help, we offer a free consultation.

Under What Conditions Do You Recommend a Revocable Living Trust?

In California, anyone who owns a home or other substantial assets may benefit from executing a living trust.  From tax advantages to avoiding unnecessary court proceedings to providing a safety net during your lifetime to addressing specific needs in your family, a living trust might be the right estate planning paper for you.

A California estate planning attorney can talk to you about your situation and explain the benefits of different types of estate planning documents.

A Revocable Living Trust Offers Many More Options Than a Will

Living trusts can provide opportunities that a will cannot, for example:

  • You may name one or more successor trustees to manage your financial matters during your lifetime, in case you become incapacitated or simply want to go off on an adventure and not be bothered with management of your assets.
  • A living trust can manage your assets and provide for your beneficiaries for many years after your death, unlike a will. For example, if you have young relatives that you want to benefit after your death, their shares may be held in trust until they reach adulthood or even later in their lives, to ensure the assets are used responsibly and protected from their creditors. 

There are many other types of specialized living trusts that could provide valuable benefits for you and your loved ones. An estate planning attorney can discuss the different kinds of living trusts that could be useful in your circumstances.

Living Trusts Allow More Privacy Than Wills

Unless there is a challenge to the document, a living trust does not have to go through probate.  Most trust instruments therefore never become public documents, and their terms may be kept confidential except from your beneficiaries and heirs after you die.

Living Trusts May Help Avoid Costly, Time-Consuming, and Public Probate Court Proceedings

In contrast, a will has to go through the probate process and to be approved and administered by a court after you die.  The court will then oversee the administration of the deceased person’s estate for a period that may take a year or more.

If an individual dies without leaving a will or trust, their estate may still have to go through the probate court.

A living trust, on the other hand, generally does not need to be filed with the court, so it does not become a matter of public record.

Contact an Attorney Today

If you would like to learn more about how a living trust could be advantageous for you and your heirs, you can talk to a California estate planning attorney. Get in touch with our office today for legal help, we offer a free consultation.

What Happens if You Don’t File a Probate in California?

If a friend or loved one dies with only a will, or with no estate plan at all, you may be required to file a probate petition before you can take control or possession of that person’s assets. Failing to do so, and taking or distributing the assets without the proper procedures, may lead to penalties and damages that far exceed any benefit you may receive.

If you take control of an estate that is required to go through probate in California, but you do not file the probate case, you could face severe civil and criminal consequences. Not every estate has to go through probate, but most non-lawyers do not understand the factors that determine which estates must be probated.

With so much at stake, you will want to talk to a California estate planning attorney about whether your loved one’s estate has to go through probate and to learn what happens if you don’t file a probate in California. Keep in mind that you may not have to personally do the work of administering an estate.  The law provides that you may hire an attorney to do the job for you, and the fees will come out of the estate, not out of your pocket.

Here are some consequences of not filing a petition to probate a will:

Creditors Will Have Extra Time to File Claims Against the Estate

One benefit of timely filing a probate petition is that the filing may establish deadlines for when the decedent’s creditors can bring claims against the estate.  Creditors generally have just four months to file claims after the court appoints an executor of the will or an administrator of the estate. If you do not open a probate case, the clock does not start ticking right away, and the creditors may have more time to pursue their claims.

You Cannot Open a Bank Account to Pay the Debts of the Estate

Typically, after you file the will with the court, you ask the court to issue letters of administration that give you legal authority to do things like pay the expenses and debts of the estate and get access to the decedent’s accounts and other assets. 

A bank is highly unlikely to give you permission to open an account in the name of the estate to pay claims for the debts of your deceased loved one. Those claims can remain in limbo for some time. Also, creditors may go after you personally for your failure to notify them of the death of your close relative.

You Cannot Transfer the Estate Assets to the Heirs and Beneficiaries

In cases where a probate is legally required, the only way to legally transfer property to the named beneficiaries is to file the will or open the probate with the court and go through the probate process. Just as debts can remain in limbo, the real estate, cars, and other property of the decedent may remain in the decedent’s name until legally transferred.

You Could Be Personally Liable for Expenses of the Estate and Financial Harm to the Heirs

If you take possession of the estate assets but fail to follow through with the proper procedures, then you may find yourself liable for any damages that result.  For example, the failure to pay the expenses of the estate, or to timely transfer assets to the beneficiaries, could cause harm to the estate and to the beneficiaries. Being unable to close out the estate can create increased expenses due to the delay. You might have to pay those expenses personally if your failure to file the will or pursue the probate process caused the delays and increased expenses.

The value of some assets might go down because of the delay in getting those items transferred to their rightful recipients. Those beneficiaries could seek to hold you responsible for the financial hardship you caused.

The Other Heirs Could Have the Court Remove You as Executor or Administrator

If you do not follow California law concerning your fiduciary duties as executor or administrator of an estate, the other beneficiaries could file papers in court and ask a judge to remove you from that role. You might have to provide an accounting of your actions to the judge.

You Could Face Criminal Charges if You Fail to Comply with Required Probate Procedures

In some cases, if a person wrongfully takes possession of the estate assets, or intentionally conceals a will for their own benefit, they can face criminal charges for those actions. Considering the inconvenience and other potential consequences of failing to take a will through probate, or to open a probate where there is no will, it is usually best to talk to a California estate planning attorney about your legal obligations. Please reach out to our office today for a free consultation. We are here to help.

Are Special Needs Trusts Always Appropriate?

When planning for a person with special needs, you have more than one option. In some situations, a special needs trust might be a good choice, but in some other circumstances, you might have a better option.

Special needs trusts are sophisticated legal documents that must comply with multiple rules. If you make a mistake, you or the beneficiary might not get the results you hope to achieve. You should consult with a California estate planning attorney about these issues, including whether a special needs trust is appropriate for your or your loved one’s needs.

The Advantages of Special Needs Trusts

Many people with special needs, including those with health issues or who are unable to handle their own financial affairs, may receive valuable government benefits like Medicaid and Supplemental Security Income (SSI) to help provide for their support. These programs may have strict income and asset limitations so that a person with economic means may be unable to qualify for these benefits. If an individual with special needs receives an inheritance, personal injury settlement, or some other windfall, for example, that money could cause them to lose these benefits or have them substantially reduced.  

Such beneficiaries may be left without the health insurance or monthly stipend they receive through these programs, and they may lose or reduce their eligibility for assistance with housing, nutrition, transportation, adult day programs, and other public benefits they would otherwise receive.  

A special needs trust can eliminate this unwanted consequence by providing that the windfall goes into a trust for the person’s benefit, rather than directly to the person with special needs. Since the trust beneficiary does not own the assets, the money will often not count as their income or assets, so they may not lose their eligibility for Medicaid or SSI.  

The Downsides of Special Needs Trusts

Along with the benefits of a special needs trust, there are also some downsides.

For example, after the individual with special needs dies, the assets remaining in the trust may go to the government to reimburse taxpayers for the money spent on the beneficiary throughout his or her lifetime. Other family members or friends may only inherit what little, if anything, remains after the government gets reimbursed. 

Also, if the trust is not set up properly or the trustee uses the assets for a purpose not allowed with these unique trusts, the special needs trust could get voided, defeating the purpose for which it was created.

Alternatives to Special Needs Trusts

There are alternatives to special needs trust, but you should be careful to ensure that those alternatives don’t limit the recipient’s access to public benefits.  

For example, you could create an estate plan to leave assets directly to the person with special needs, but you would need to be sure you consider the potential loss of that person’s benefits. If the gift is substantial, it may in some cases be sufficient to support the person even if they lose their government benefits.  Still, this situation should be avoided if possible, to ensure that the benefits remain available if needed.  

Even if the gift is sufficient to compensate for the lost benefits, it may be best to create a living trust to oversee the disabled person’s financial matters and to reduce the likelihood of someone taking advantage of the special needs individual. Also, this option may allow siblings or other relatives to eventually inherit what the disabled person does

not use. A person with a short life expectancy could be a candidate for this option.

Another alternative to a special needs trust is to leave the disabled person’s portion of the estate to a third party, like a sibling, to hold for the individual with special needs. The danger in selecting this option is that the third party might not use the assets for the disabled person, or might be swayed by another person, such as a spouse or child, to use those assets for their own benefit. Also, unless done carefully and with full transparency, this strategy could be viewed as a fraud on Medicare or SSI, causing a myriad of adverse consequences.

A California estate planning attorney could talk with you about your situation and draft the documents that meet your goals and needs. Get in touch with us today.

Loew Law Group services clients through San Mateo County including the cities of Belmont, Burlingame, Foster City, Hillsborough, Redwood City, and San Mateo, as well as in all Bay Area counties and throughout California. 

Is it Possible to Probate a COPY of a Will Without the ORIGINAL in California?

One of the frustrating aspects of handling a close relative’s estate after they die is trying to find all of the essential financial and legal documents. You might find the deceased person’s will, but it might be quite old, making you wonder if it was revoked and replaced by a later will or trust. Sometimes, all that you can find is a copy of the will. The original might be in a safe deposit box somewhere or in a lawyer’s office.

Is it possible to probate a copy of a will without the original in California? This situation is tricky, so it would be best to seek the advice of a California estate planning attorney on how to proceed.

The General Rule in California When You Cannot Find the Original Will Document

Most states follow the general rule that the court will presume that the original will was destroyed or revoked if the family or person administering the estate cannot find the original document. California Probate Code § 6124 (CA Prob Code § 6124 (2020)) lays out how California approaches this issue:

“If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.”

Like many other legal presumptions, however, this presumption is rebuttable. In other words, it might be possible to convince the probate judge that the decedent did not destroy the will and that the copy you found is, indeed, the most recent will of the deceased, and was not revoked or modified by any later wills, trusts, or codicils.

What Happens if the Judge Refuses to Accept the Copy of the Will

If the judge is not convinced that the copy of the will accurately represents the decedent’s actual final wishes, the court may find that the deceased person died intestate. Dying intestate means that a person did not have a valid will or trust at the time of death.

In that event, California’s laws of intestacy, not the decedent, will decide who gets the deceased person’s estate and in what proportions. Here are a few things you might want to know about intestate succession in California:

  • Intestacy can apply to a deceased person’s entire estate or any portion of an estate that does not get distributed through the decedent’s will, trust, or another legal device like making a bank account “payable on death” or naming someone as the beneficiary of a life insurance policy.
  • The intestate share of a surviving spouse in the decedent’s community property is half of the community property that the decedent owned.
  • If the intestate deceased person did not have any surviving children or other issues, or any surviving parents, siblings, or issue of a deceased sibling, the surviving spouse may receive the entire intestate estate.

A California estate planning attorney can help you deal with the many situations that can come up during the administration of an estate, whether the decedent left a valid will or trust or died intestate. Contact our office today for a free consultation.

Loew Law Group services clients through San Mateo County including the cities of Belmont, Burlingame, Foster City, Hillsborough, Redwood City, and San Mateo, as well as all Bay Area counties and throughout California.