This week's question: I have been thinking this through for months, but I cannot decide who will inherit my estate. Maybe I should do nothing and let my heirs fight over it. What if I die without a will or a trust?
/s/Anne A., Almaden Valley
Dear Anne: You haven't told us much about your family situation, Anne, so it is a little hard to say how things will go. But it is safe to say, I think, that passing on without a will or a trust is probably the worst thing to do.
Let me explain. If you die without a will or a trust, in our jargon we say that you died "intestate", i.e., without a will. If that is the case, the State of California will decide exactly how your estate will be distributed. No exceptions.
My Black's Law Dictionary, Seventh Edition, defines "intestate" as follows: "Of or relating to a person who has died without a valid will." Also, "Of or relating to the property owned by a person who died without a valid will." So, if you die without a will, someone needs to dispose of your property, and that "someone" is the Superior Court of the State of California if you die while a resident of this state.
You would not be the first person to die without a will in this state, and you won't be the last, so the state has set up rules to follow as to how to distribute your property. These rules are found in the California Probate Code.
The rules of intestate succession were discussed in a California case recently. The case is entitled, Estate of Doralee Verna Bekel, and it was decided on May 20, 2009. It involved an estate that was pending in Kern County and the appeal was heard in the Fifth Appellate District Court. In that case, Doralee died without a will. Evidently, Doralee did not have a surviving husband, children, parents, or siblings.
Maureen, the Estate Administrator, limited distribution to the children of the predeceased first cousins, i.e., first cousins once removed. Kathleen represented other remote heirs, i.e., the late Doralee's first cousins twice removed and thrice removed. She filed an appeal to the trial court's ruling, since she was unhappy with the Administrator's decision that was supported by the Kern County Superior Court. It turned out that Kathleen was right.
The Court of Appeal held that surviving issue include all lineal descendents of all generations. Therefore, the estate had to be divided into as many shares as there were first cousins who survived the decedent, Doralee, and first cousins who predeceased Doralee but left surviving issue of any generation. Exciting stuff? Not really. Rather boring when you stop and think about it. And I'm sure most of those distant relatives never even met Doralee or even heard about her. (But they undoubtedly welcomed a check in the mail.)
How could that unfortunate but true story have been avoided? By Doralee having a simple will or trust drawn up. Had she done so, the whole mess would have been avoided, Doralee's assets would have been distributed exactly as she wanted and directed, and expense and stress would have been minimized. You can read the case for yourself by entering the name of the case in your favorite search engine, Estate of Doralee Verna Beckel.
If you do so, remember to consult with your own attorney as to how this or any other case or statutory provision may apply or may not apply to your particular situation. Only your own attorney can guide you properly in these matters. I hope that this answers your question, Anne. If I were you, I would have a will or living trust drawn up today. Perhaps your attorney can help you do just that. Best wishes in that endeavor.
/s/Donald J. DeVries, Almaden Valley
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com