The Best Time to Think About the End of Your Life

I received a very disturbing telephone call yesterday, which inspired today’s blog post.

A woman whose brother lay dying in the hospital called to ask a few questions about what would happen to his estate after he died. She said he had a Will, in which he left everything to his children, and provided nothing for his wife, from whom he had been separated for more than 15 years. The caller had drafted the Will, “off the Internet,” because the dying man wanted to make sure his children received his estate, and not his estranged wife.  She also said that she herself had drafted a Power of Attorney, also “off the Internet.”  She wanted to know if the dying man’s son, who held the Power of Attorney, could transfer his property into a Trust to keep it from the estranged wife.  He and this wife were not legally separated, and had no written agreement about their marital property upon separation.  In other words, he and his wife were, in the eyes of the law, legally married, and the wife had all marital rights.  

I researched ownership of his largest asset, his house, and discovered that it was owned, with the estranged wife, as “joint tenants with rights of survivorship.”  I explained to the caller that in this case, the husband and wife each held a 100% interest in the house, and that upon her brother’s death, the house would go to the wife, even though they hadn’t lived together in 20 years.  Regardless what the Will or any Trust would say, the Deed trumps the Will or Trust.

The caller also admitted that the Will that she had downloaded off the Internet did not mention the wife at all.  In California, a spouse has a statutory right to at least part of the dead spouse’s estate. If the spouse is not mentioned in the will and is not clearly disinherited, it could result in her being declared “pretermitted,” or “forgotten,” and the Court could grant her a statutory portion of the estate. The Internet Will had failed to do this.

I explained that a “form Power of Attorney” downloaded off the Internet probably did not give the dying man’s son the authority to make gifts, i.e., he could not transfer his assets to a Revocable Trust. And even if the POA permitted this, the son could not transfer the house into the Trust without the permission of the estranged wife… something that was unlikely to happen.

This tragic scenario demonstrates three hard but important lessons:  (1) Don’t wait until you’re on your death bed before considering your estate plan; (2) Don’t expect forms downloaded from the Internet to provide you with the customized legal advice that a good estate planning attorney can provide; and (3) The lack of good legal advice can be much more expensive than a trust attorney’s fee.

About the Author: Dustin MacFarlane, Esq.

California Licensed Attorney | Estate Planning Specialist

Dustin MacFarlane is the founder of California Probate and Trust, PC, with over 15 years of experience in estate planning, probate administration, and trust law. Licensed by the California State Bar, Dustin has helped thousands of California families protect their assets and plan for the future.

CA Bar License: Active | Practice Areas: Estate Planning, Probate, Trust Administration | Location: Granite Bay, CA

Why Estate Planning Matters in California

California has unique estate planning laws that differ significantly from other states. Without proper planning, your assets may not pass according to your wishes, and your family could face unnecessary probate court proceedings.

A comprehensive California estate plan typically includes:

• A revocable living trust to avoid probate
• Pour-over will as a safety net
• Advance health care directive
• Durable power of attorney for finances
• Beneficiary designations on retirement accounts and life insurance

How Trusts Work in California

California’s trust law (Probate Code Division 9) governs how trusts are created, administered, and terminated. Understanding these rules is essential for effective estate planning.

Key benefits of California trusts:

• Avoid probate: Assets in a properly funded trust bypass California’s lengthy probate process
• Privacy: Unlike wills (which become public in probate), trusts remain private
• Control: You maintain control during your lifetime and direct distribution after death
• Incapacity planning: Your successor trustee manages assets if you become incapacitated
• Tax planning: Trusts can help minimize estate and income taxes