Typewritten wills in California generally require the signatures of two witnesses to be found valid, but the harmless error rule can save the day. Probate Code section 6110(c)(2), as recently discussed, provides that a will not properly executed may be admitted to probate if the proponent “establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
Can a California will sever a joint tenancy such that the decedent’s interest in real property passes per will’s terms instead of vesting in the surviving joint tenant(s)? Additionally, when a general partnership dissolves after the death of a partner’s spouse, does the deceased spouse’s estate have a community property interest in the distributed partnership assets?…
Providing for your children is one of the primary purposes of estate planning, but what happens to your carefully crafted trust if you had children you did not know about when you created the trust? Or, what if you have children after you create your trust but never get around to amending the trust to…
In California, a trustor (person who creates a trust) can confer a “power of appointment” on trust beneficiaries, empowering them to designate to whom they want to give their shares of the trust. The trustor can require trust beneficiaries to specifically exercise and refer to the power of appointment in any will they create to…
What a difference a few weeks make! A month ago, the COVID-19 virus was a distant threat. Over the last few weeks, California courts and law offices have closed, leaving families at home and uncertainty as to when “normal” will return.
Colleagues share that COVID-19 has led to a flurry of calls from clients who want to push forward to complete estate plans that they had left unfinished. Folks who never had estate plans also are seeking to get them done.
California’s estate planning formalities, however, create challenges in our pandemic situation.
A key feature of a California revocable trust is that it can be amended. Revising a trust can, however, seem like an irksome chore so it’s common for creators of trusts (i.e., “settlors” or “trustors”) to shrug off an amendment until it becomes clear they have limited time to settle their affairs.
Such procrastination invites mistakes, including failure to comply with a trust’s built-in procedure for amendments. Indeed, while many trust instruments do not specifically prescribe how they may be amended, others do – often requiring “delivery” of the amendment to the trustees or settlors, that the amendment be signed, or both.
What happens when a settlor does not fully comply with the trust instrument’s modification procedure, even though it’s achingly obvious that he intended to amend his trust? Should a court rigidly bind him to the modification procedure or should it follow what seem to be his dying wishes? The California Court of Appeal faced this conundrum recently in Pena v. Dey (2019) 39 Cal.App.5th 546. The court required strict compliance with the trust’s modification procedure, rejecting a Post-it® note as satisfying a signature requirement.