by Andy Chen | Oct 25, 2019 | California, Estate Planning
I’ve made several posts in the past about California wills. There’s the one about how to make a will, how to disinherit your children and your spouse, as well as what happens to your will when you get divorced in California. In this post, I’m going to go over something a bit more fundamental when you make a will: is the person mentally competent to even make a will? If a person is going to make a will, I think they should make it really early. Making a will in your 30s or 40s isn’t too soon at all, I think. Human nature being what it is, though, many people wait until the last minute to make a will. By this time, they might be suffering from a variety of health problems, including but not limited to dementia. The question of ‘When is someone mentally competent to make a will?” is answered in California in section 6100.5 of the California Probate Code. The statute is phrased — for clarity and ease of understanding purposes, I’m sure — in the negative. Two criteria are listed and if either of those criteria are satisfied, mental competency does not exist. Under section 6111(b)(2) of the California Probate Code, a will is invalid if it was made at a time when the person making it (i.e. the testator) did not have mental competency. The criteria to demonstrate a lack of mental competency under Section 6100.5 are as follows: The person does not understand the nature of the testamentary act. For example, the person needs to understand that they are making a will and...
by Andy Chen | Jun 14, 2019 | California, Estate Planning
I previously described how it is sometimes possible – at least in California – to handle a deceased person’s estate informally without the need to go to court, hire lawyers, etc. In California, this is often referred to as the Small Estate Affidavit process. I even made a video about it on my Youtube channel. While you’re at it, throw me a subscribe if you wouldn’t mind. The Small Estate Affidavit process in California is only available if the deceased person’s estate meets various criteria. I’m not going to go over every single criteria, but the two big ones are: (1) the gross value of the estate has to be less than $150,000, and (2) at least 40 calendar days has to have elapsed since the person passed away. If you’re looking for the language of the affidavit, I’d recommend you check out Section 13101 of the California Probate Code for a start. However, let’s say that you’ve met all the criteria to do the Small Estate Affidavit process in California (e.g. the estate is definitely worth less than $150,000 and 40 calendar days definitely have passed), but the person or business you’re trying to use the Affidavit at won’t honor it. What then? The answer to that question is in Section 13105 of the California Probate Code which provides that the person presenting the Affidavit is entitled to whatever property or items he or she is seeking as long as the person has met the requirements contained in Sections 13100 to 13104 of the California Probate Code. Sections 13100 to 13104 are fairly straightforward and include requirements like...
by Andy Chen | Feb 13, 2019 | California, Estate Planning
A while back, I put a video out on my Youtube channel describing what a Power of Attorney (POA) is and what it can do for you. Here it is, in case you missed it. I also posted previously on this blog about what happens to a Power of Attorney in California when you get divorced and your spouse is your POA agent. In this post, I’m going to go over what happens when a POA that has been properly signed is, nonetheless, not recognized. For sake of illustration, let’s say that your elderly mother has signed a POA naming you as her agent. Your mom wants you to manage her money (e.g. pay her bills) and to do that, you need to access her bank accounts, but your mom’s bank is refusing to cooperate with you. What do you do? The California statute that applies here is Section 4406 of the California Probate Code. One important thing to recognize first, though, is that 4406 only applies to what are called “Uniform Statutory Powers of Attorney”. What this basically means is that 4406 doesn’t apply to any random POA that gets written up, even if it’s written up properly. 4406 only applies to the specific POA that is explicitly specified in the California Probate Code (specifically, section 4401). If you have a Uniform Statutory Power of Attorney in California and it’s been properly signed by the principal (see CA Probate Code section 4121) and a third-party (e.g. a bank, like in this hypothetical) is refusing to honor it, 4406 provides for the following: The agent can sue the third-party...
by Andy Chen | Jan 8, 2019 | California, Estate Planning, Family Law, Individual
I had a post before about what happens in California to your will after you get divorced. Many people have their spouses named in their will in some way (e.g. to be executor). In nearly all cases, I would imagine you don’t want your ex-spouse to have control over your estate when you’ve died. Today, though, I’m going to go over a similar question: what happens in California to your Power of Attorney or Durable Power of Attorney document after you’ve gotten divorced? As with wills, many people name their spouses as their power of attorney agent or durable power of attorney agent and, as with divorces, most people likely don’t want their ex-spouses having control over them once the divorce is finally over. The relevant law here is going to be Section 4154 of the California Probate Code, section (a) of which states: “If after executing a power of attorney the principal’s marriage to the attorney-in-fact is dissolved or annulled, the principal’s designation of the former spouse as attorney-in-fact is revoked.” Section 4154(b) then goes on to say that if divorce or annulment of the marriage was the only reason why the power of attorney was revoked, then remarriage of the principal and attorney-in-fact will reinstate the power of attorney and the attorney-in-fact’s authority under it. If, however, the power of attorney was revoked for other reasons too and the principal and attorney-in-fact just happened to get divorced at the same time, then them remarrying does not reinstate the power of attorney and the attorney-in-fact’s authority. If you compare what happens to a will under section 6122 of...
by Andy Chen | Jan 2, 2019 | California, Estate Planning, Individual
After you get divorced, a lot of things happen automatically under California law. Many of these things have to do with estate planning. In this post, I’m going to go over how a divorce affects how California treats wills that either spouse has made. In previous posts, I’ve gone over how to make a will in California, how to disinherit your children in your California will, and how to omit your spouse in your California will. If you haven’t seen those posts, I encourage you to go take a look. The relevant law here for how a divorce affects a will is going to be in section 6122 of the California Probate Code. A very similar statute (Section 6122.1 of the California Probate Code) applies to domestic partnerships also. Under section 6122(a), the following happens automatically upon a divorce unless a will executed after the divorce provides otherwise: Disposition of property to the former spouse is revoked;Special and general powers of appointment conferred upon the former spouse are also revoked;Provisions specifying the former spouse as conservator, guardian, trustee, or executor are also revoked. In the event of a divorce, section 6122 treats the former spouse as if they had already died. In the event these spouses get remarried, however, section 6122(b) automatically reinstates/revives these same provisions of the deceased spouse’s will. As always, this post is not meant to be a comprehensive explanation of how a divorce might affect your will or the will in the particular situation you are dealing with. If you are outside of California or your situation doesn’t involve California at all, likely none of...
by Andy Chen | May 16, 2018 | Estate Planning, Individual, New York, Statutes... and stuff
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...
