Tag: California Probate

Sometimes, people sign statutory will forms which end up being invalid in California.  Our law firm has been advising clients regarding the problems with the use of Statutory Will forms in California for over three decades.

What makes a California Statutory Will invalid?

The manner in which the statutory will is executed may itself invalidate the will.   These types of will have to be completed by the testator.  People who try to fill these out for their parents often create a problem with admission of these types of wills, when will contests come about.

Faulty execution or signing and create problems with wills.  Moreover, faulty witnessing can also lead to particular will admission problems.   For example, if the witnesses do not view the testator sign the will, and do not sign the witness provisions in presence of the testator (that is the person who creates the will), then the statutory will is not validly signed.

What else makes for a bad California Statutory Will?

The California Statutory will provisions tend to be a somewhat confusing part of California Probate Code.   While the legislature has tried to make it simple, it is actually quite complicated.   You can inadvertently mark more than one box, which invalidates that provision.  You can fail to mark a box, which then creates other problems.  More than once box checked, invalidates that gift.  No box checked invalidates the provision.  The result of invalid gifts and residuary provisions is that heirs-at-law get the estate.  The result is the same as intestacy or having no will at all.

How do you avoid problems with wills?

Having an attorney drafted will avoids the common types of problems with the statutory will.  You will get advice, and there is someone to double check every aspect of the will.   People who want to engage in self-help wills must be made aware of the potentials for problems of selt-help will forms.

Call Mina Sirkin, Los Angeles Will Attorney who is certified as a specialist in probate and estate planning to help you with problems involving statutory wills at 818.340.4479 or email: Info@SirkinLaw.com.

 

 

 

SPOUSE AND DOMESTIC PARTNER DEFINITIONS RELATED TO CALIFORNIA PROBATE

California Probate Code 72 provides that Spouse also includes a domestic partner under the Probate Code.

“Spouse” includes domestic partner, as defined in Section 37 of this code, as required by Section 297.5 of the Family Code.

(Added by Stats. 2016, Ch. 50, Sec. 77. (SB 1005) Effective January 1, 2017.)

YOUR RIGHT AS A DOMESTIC PARTNER IN CALIFORNIA PROBATE ESTATES AND TRUSTS

In order for a California Domestic Partner to have rights in the probate estate and trust of his or her partner, certain requirements have to be met.

First, we have to determine if a Domestic Partner status is available.   California defines Domestic Partners as those who have filed one of the following forms and official documents with the Secretary of State in California:

• Declaration of Domestic Partnership (Form NP/SF DP-1)
• Confidential Declaration of Domestic Partnership (Form NP/SF DP-1A)

A Domestic Partner Registry has been set up by the State of California for this purpose, which you can reach here:  http://www.sos.ca.gov/registries/domestic-partners-registry/.   California Domestic Partnership Forms and Fees can be found here:  http://www.sos.ca.gov/registries/domestic-partners-registry/forms-fees/#forms

A Domestic Partnership is therefore created by a positive act.  :“Domestic partner” means one of two persons who have filed a Declaration of Domestic Partnership with the Secretary of State pursuant to Division 2.5 (commencing with Section 297 of the Family Code, provided that the domestic partnership has not been terminated pursuant to Section 229 of the Family Code.   So, if the Domestic Partnership was terminated before death, the surviving domestic partner does not have any rights under intestacy rules.

If the Domestic Partnership has been terminated by death, however, and Notice of Termination was not filed by either party prior to the date of death of the decedent, the domestic partner who survives the deceased is a surviving domestic partner, and shall be entitled to the rights of a surviving domestic partner as provided in this code.

If there is a registered domestic partner relationship, then the domestic partner can stand to inherit assets under a trust, or the will, if he or she is unintentionally omitted, and definitely in intestacy, if no will exists.

Unfortunately, siblings and parents of the domestic partner may not get along with the domestic partner and several things can happen.  People who enter the domestic partners’ home my remove estate planning documents, will and other related documents.  We have heard that during the disputes, others hid the estate documents to prevent the domestic partner from inheriting.   This is why it is even more important for domestic partners to have an estate planning attorney, and to designate a safe keeping procedure for the estate planning documents of the domestic partners.

Need help protecting the domestic partner from family members?  Call Mina Sirkin, Trust attorney in Los Angeles County, California for help with Domestic Partnership probate, trusts and estate matters: 818.340.4479.