New York Small Estate Affidavit Procedure

Every so often, I get questions in California about how to do a probate for someone who died but left very little or no assets. It got so frequent at one point that I made a video about it for my Youtube channel on the California process. The idea of a summary — or quick — probate process for someone who left little or no assets is not unique to California. This post discusses the Small Estate Affidavit Process for New York. As an initial matter, though, I have to clarify that I do not take cases in New York because — while I have been licensed to practice law there since 2012 — New York also requires under New York Judiciary Law section 470 that lawyers maintain a physical office within the state of New York too. I don’t so I don’t take clients or cases there. I do, however, know plenty of lawyers all throughout New York so if I can make a referral to help you solve your problem or move your case forward, feel free to get in touch. Because I don’t have an office in New York state, I have never done the NY Small Estate Affidavit Process myself so I have no first-hand experience to operate from. All of the below is simply due to my, ahem, excellent legal research skills. Anyway, that said, the applicable law for the New York Small Estate Affidavit Process is New York Surrogate’s Court Procedures Act (NYSCPA) Section 1301 and onward. (That’s Article 13, in case you need an Article). The basic idea for the New York...

California Will Drafting – Disinheriting Your Children

Last time, I posted about how to omit, disinherit, or otherwise leave your spouse out of your will. The rule there was that under California Probate Code Section 21610, you can’t disinherit your spouse by simply not mentioning them in your will. California will assume that such an omission was accidental and give your spouse an intestate share anyway. This time, we’re going to talk about disinheriting your children. The rule is very similar to disinheriting your spouse, except this time, we’re talking about California Probate Code section 21620, simply not mentioning your children in your will is not enough to disinherit them. Unless you can prove one of the section 21621 exceptions apply, California will assume you didn’t mention your child by accident and then give them a share equal to what they would have gotten under intestacy. One reason for this is that California recognizes that while people should update their estate planning documents after life-changing events (e.g. getting married, having kids, etc), not everyone does that so every will and trust will always be out-of-date and can’t be read literally. As with omitting your spouse, there are a few ways in which you can actually leave your children out of your will completely. Those ways are enumerated in Section 21621 of the California Probate Code. You left your child out of your will intentionally and that intention is apparent from the will in some way, You left property to the parent of the child instead of leaving the property to the child directly, or You provide for the child in some other way outside of your...

California Will Drafting – Omitting Your Spouse

Previously, I made a post about how to make a will under California law. I also have a video on my Youtube channel about it. One issue that pops up a lot when drafting a will is how to — basically — disinherit someone. This might be done out of spite or might be done intentionally because, for instance, the spouse is independently wealthy or the person making the will has provided for their spouse in some other way already. The problem that arises is that many people who are writing their will think they can disinherit their spouse by simply leaving them out of the will. In other words, by not mentioning their spouse in the will, their spouse will be disinherited. This isn’t the case at all in California and it’s because of California Probate Code section 21610 which provides that the assumption is that omitting your spouse from your will was accidental and that, unless proven otherwise, your spouse will get: Half of the decedent’s community property, Half of the decedent’s quasi-community property, and A share of the decedent’s separate property equal to what the spouse would have received under California’s intestate succession scheme if the decedent had died without a will. This share, however, will be capped at half of the decedent’s separate property. If you do indeed want to leave your spouse nothing for any reason, you should look at section 21611 of the California Probate Code which basically says that the section 21610 presumption will not apply if: The spouse was omitted from the will intentionally and this intention is apparent in the...

Common Scenarios in California Probate Cases

In prior posts, I’ve gone over how to make a will in California as well as what happens to your stuff in the event you die without a will. The former is, hopefully, pretty useful. The latter is hopefully useful too, if only to give you something to avoid. Let’s suppose, however, that you’ve made a will. This post will briefly go over what will happen to that will in the event you do pass away. Or, if you want to think of it this way, this is the situation your friends, family, heirs, etc will have to deal with once you’re gone. Because it would be too easy otherwise, there are actually several scenarios that commonly occur in California. I’ll try my best to go over each of them and introduce the terms that apply to those situations. One thing to remember is that the goal will be to handle, take care of, or dispose of the deceased’s estate. The legal term for this is “administration”. The authority to administer a deceased’s estate arises from the issuance of “letters” under California Probate Code section 8400(a). Scenario #1 is where the deceased died without a will of any kind. This is called “intestacy” or “intestate succession” and, in a previous post, I went over how California handles that. The letters applicable to this situation are “Letters of Administration”. Scenario #2 is when the deceased person died with a will, the will names someone to administer the deceased’s estate, and the person is able and willing to serve. Such a person is called an executor if they are male and...

How to Make a Will in California

We’ve probably all seen a movie or TV show with a scene where someone is dying and trying to make a will. Usually, this involves the person saying a line like “I, John Smith, being of sound mind and body, do make this my last will and testament…” Hollywood artistic license plays a large part in what you see on TV and in the movies, but the question of how to make a will is a good one. A post of two ago, I went over what happens to your stuff if you die without a will. Human nature makes it difficult for most people to imagine themselves dying, but death happens to all of us. Making a will doesn’t mean you hope to die, but it does make it easier for your friends and family or whoever else has to deal with the aftermath of you passing away. Having a will also makes it more likely that the stuff you’ve worked hard for and accumulated over your life actually goes to the people that you want to get it. In the United States, the laws and procedures by which you make a will are determined by each state. In California, the process to make a will is described in California Probate Code Section 6110 which specifies the following requirements. The person making the will is called the “testator”. Writing a will is also unlike writing any other document because the person who knows the most about the document (i.e. the will) will be dead by the time any questions arise about what this phrase or that phrase in...

Long-Term and Short-Term Marriages in California

If you’re in California and either contemplating a divorce or just learning about them just in case, one important distinction to know is whether your marriage is “short-term” or “long-term”. As I’ll explain, it’s not a difficult distinction to keep straight, but it is important to know for at least two reasons: (1) different rules apply depending on which category your case is in, and (2) lawyers and judges will often use the words “short-term” and “long-term” very casually so it’s important to know what they mean. Simply put, a marriage is “short-term” is generally one that is less than 10 years in duration. Conversely, a marriage is generally “long-term” if it is 10 or more years in duration. See California Family Code section 4336(b). This 10-year mark is not set in stone, though. It is possible for a long-term marriage to be less than 10 years long and for a marriage longer than 10 years long to be considered short-term. As with many things in the law, it all depends on the situation. There are many areas in which this short versus long distinction is important. The most common one I see is when it comes to determining permanent spousal support under California Family Code section 4320, specifically section 4320(l). If your marriage is short-term, section 4320(l) can place a limit on the duration of permanent spousal support of half the length of the marriage. If your marriage is long-term, then this “half the length” limitation may not apply. As I said earlier, though, there is no way to say for sure whether your marriage is long or...

What if you die without a will? California Intestate Succession

A will and/or a trust is probably something that a lot of people hear that they should have. Most people probably don’t, however, because human nature is that way. In this blog post, I’m going to go over what happens if you die without any estate planning documents at all. Any one of us can, unfortunately, die all of a sudden so this post is likely not as theoretical as a lot of us would like to think. I’m going to talk specifically about California, but the concept I’ll go over (i.e. Intestate Succession) is not unique to California. Other states in the US recognize it also. As always, however, if you’re outside of California, you need to look up the particular rules for Intestate Succession in your state. In describing what happens to you if you die without a will or a trust, I’ll also illustrate one of the reasons why you should not wait to get divorced. Intestate Succession Intestate succession is the generic term for what happens if you die without a will or a trust. As a reminder, California has specific requirements that a will and a trust have to meet in order to be valid. If your will or trust doesn’t meet those requirements and you die, it’s like you didn’t have a will or trust at all. Intestate Succession is a set of rules that governs who gets your stuff when you die. If you leave a will or a trust, you can specify who you want (or don’t want, as the case may be) to get your stuff. You can leave things...

California Child Custody Timeshare

In a divorce case, one of the big things that the courts in California will decide is custody and visitation of any minor children that the divorcing parties may have. I haven’t checked, but this is probably not unique to California. As always, check the laws of your particular state or country, but if you’re in the United States but outside of California, the court presiding over a divorce will likely determine child custody and visitation also. To be clear, custody and visitation are not interchangeable terms. As they are commonly used in California, “visitation” refers to the schedule by which the child will visit with the parent they do not regularly live with. For instance, if the child lives with Mom regularly, then visitation refers to the schedule under which the child visits with Dad. There could be a visitation schedule for regular or routine weeks and a different schedule for other times of the year, such as holidays and the child’s summer vacation from school. Custody — again, as used in California — refers to two kinds: (1) legal custody, and (2) physical custody. Legal custody refers to the right of a parent to decide things related to the child’s schooling, medical care, and religious education. As a rule of thumb, legal custody is at play whenever a parent has to sign a permission slip (e.g school field trip) of some kind for the child to do something. Physical custody refers to who the child lives with. A common custody arrangement might, therefore, be “shared legal custody and primary physical custody to Mom with Dad having visitation”....

Property Division in New York Divorces (NY Domestic Relations Law section 236(B))

California is a community property state when it comes to divorces. The idea of community property is not difficult to understand in the abstract — colloquially, you might have heard it as the rule that in a divorce, you get (or lose) of the stuff. See California Family Code section 2550. Property is basically put in to one of three categories: (1) stuff owned by spouse #1 from before the marriage, (2) stuff owned by spouse #2 from before the marriage, and (3) stuff that the two spouses acquired while they were married. The property in category (3) is divided in half — again see California Family Code section 2550 — while the property in (1) and (2) goes to each spouse respectively. Applying the idea of community property in the real world is not so simple. First, the spouses will argue about which category (1, 2, or 3) a particular piece of property falls in to. Second, if each spouse acquires property after they separate, determining when that property was acquired relative to the separation date can also be argued about, sometimes extensively. Third, it can often be confusing, such as when property was purchased prior to the marriage and financed or paid for partly during the marriage. Houses often fall in to this category. If you’re dealing with a California divorce where a house was purchased by one spouse before the marriage, but the mortgage was paid for during the marriage, you may be interested in something called a Moore-Marsden computation. Community property in divorces is the exception rather than the rule in the United States. The...