Here’s another reason (uno más in Spanish) to create and properly execute a will. If your spouse or other trusted designee lives out of the country when you die, he or she won’t be eligible to administer your California estate. The recent case of Estate of El Wardani (2022) 82 Cal.App.5th 870, involving a San Diego couple who moved to Mexico, illustrates this point.

Ramsey and Janine El Wardani got married in 2009 and lived in Carlsbad. Both had previously been married and they kept their assets separate. After a few years, they had enough of the rat race and retired to Baja California Sur in Mexico. Janine sold her Carlsbad home and purchased a home in Baja, where she lived full time starting in October 2014. Ramsey apparently would spend up to a month at a time in San Diego, leaving Janine in Mexico.

In 2016, Ramsey died without leaving a will. As the surviving spouse, Janine has priority to be appointed administrator of Ramsey’s estate, and she petitioned the San Diego County Superior Court for such appointment. In her court papers, Janine indicated she was a California resident.

In 2017, the court issued letters of administration to Janine but only granted her limited authority over Ramsey’s estate – she could not sell, exchange, or encumber estate property.

Janine then claimed Ramsey had taken $285,000 of her separate property while he was on one of his San Diego sojourns and filed a creditor’s claim against Ramsey’s estate. Janine’s letters of administration expired in June 2019, stripping her of the limited authority she had over Ramsey’s estate. In September 2019, however, she approved her own creditor’s claim – without giving notice to any of Ramsey’s heirs.

Ali El Wardani, Ramsey’s daughter, got wind of this and objected. She reasoned that Janine was no longer the administrator of Ramsey’s estate and could not approve her creditor’s claim. Ali also argued that Janine was not a resident of the United States and therefore could not serve as administrator of Ramsey’s estate.

Under Probate Code section 8402 a person who “is not a resident of the United States” cannot serve as administrator an estate unless that person is named as an executor in a decedent’s will. Ramsey left no will, so if Janine was not a U.S. resident, she could not serve as administrator of his estate.

In her creditor’s claim against Ramsey’s estate, Janine related that she kept her California driver’s license; maintained relationships with friends and family in California; paid California and federal income taxes; voted in California; had medical providers, an accountant, and attorneys in California; received her mail at a P.O. Box in California; and had bank accounts in San Diego.

The probate court had misgivings about whether Janine was a U.S. resident because she indicated she spent the majority of her time living in Mexico. Janine filed another declaration and stated: “As soon as the case is over, I will sell my home in Mexico and return to live permanently in the United States.”

On appeal, Janine argued that because her contacts with the United States were enough to qualify her as domiciled in the United States for income tax purposes she should be considered a resident for purposes of section 8402.

The appellate court reviewed section 8402 and its predecessor, finding that California law always has required an estate administrator to live in the United States. Janine, concluded the court, did not meet this requirement: “At best, while Janine had many contacts with the U.S. and visited frequently, there was no evidence that she actually lived anywhere but Mexico since moving there in 2014. Her bank accounts, doctors, and family gave her several reasons to visit California, but those visits did not establish residency on their own. Janine was not a person who lived in California and temporarily found herself in Mexico, but rather someone who lived in Mexico and made frequent but temporary visits to the U.S.”

Takeaways

Since trusted family members may live or move abroad, section 8402 provides another rationale for people to create wills in which they specifically name executors and successor (backup) executors. Ultimately, whether a person lives in the United States is fact-specific question that will be decided by a probate court, but it is clear that connections alone will not be sufficient.