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.
Dustin MacFarlane’s primary focus is on Elder Law and protecting families and seniors. He is a Certified Specialist in Estate Planning, Trust, and Probate Law by the State Bar of California Board of Specialization — a rare distinction.
Prior to becoming an attorney, Mr. MacFarlane worked in the Long Term Care industry. After becoming licensed to practice law in January of 2009, Elder Law quickly became his focus. Seeing the need during his former career, Mr. MacFarlane pursued Elder Law as a primary area of practice.