Non-traditional relationships and Your Estate Plan

Dear Len & Rosie,

I am a senior gent whose lady friend died almost a year ago without a will. We had lived together in California for 18 years. Everything she had was in joint accounts with me. But I later discovered an annuity she had overlooked and no doubt forgotten about. The beneficiaries of the annuity have been dead for years. She has no living relatives except for a couple of half-nephews in Nebraska she has not seen in over thirty years. Since I was closest to her and I took care her, could I be appointed executor so I can get the annuity? I have no idea what it’s worth.

Tom

Dear Tom,

In these modern times, non-traditional relationships are as common as marriage. Unfortunately for you, the law hasn’t been updated to take your relationship into account regarding the disposition of your lady friend’s estate. If all of the beneficiaries named in the annuity are deceased, then the annuity pays into the probate estate. Since there’s no will, the probate estate goes to your friend’s blood relatives, and you’re not one of them.

There’s no such thing as common law marriage in the State of California, and that means your legal rights against your friend’s estate are the same as that of any friend, neighbor, casual acquaintance and stranger. The only claim you have against her estate is if she owed you money. But it’s not enough for you to show that you provided her care and that you ought to be compensated for it - you have to show that she promised to pay you and that she really owes you the money.

What can you do? You could file for probate - if the annuity is worth more than $150,000, then it must be probated in the courts because there’s no beneficiary. You can be appointed as administrator of the estate, which is the same as being an executor where there’s no will. This assumes that those with a higher priority of appointment (her nephews) don’t object. You would be paid administrator fees, but that’s not much money at all. Whether or not you are the administrator, you will have the opportunity to submit a creditor’s claim for any money due to you.

What this really means is that unless the nephews are particularly generous and compassionate, you do not likely have a very good claim against the annuity.

How could this have been avoided? You were together for a very long time, and it’s clear that your partner wanted to leave it all to you, because she wouldn’t have titled everything in joint tenancy. The two of you should have either gotten married, or you should have created an estate plan leaving your estates to one another. Because the two of you did not do this, the annuity slipped through the cracks.

For those readers without wills, you can make one for free. The California State Bar Association provides a free form will, the California Statutory Form Will, on its webpage,www.calbar.ca.gov.  There is a “quick link” in the left-hand column that will take you to the form directly. Or, send us an email through www.lentillem.com and we’ll email it to you. You should each also have durable general powers of attorney and advance health care directives so that important legal, financial and medical decisions can be made if you are ever incapacitated.

Len & Rosie