What Happens if the Attorney Holding your Will dies or retires without you knowing?

Dear Len & Rosie,

We have wills made out by a lawyer in 1984 who is no longer practicing. He either died or moved away; I don’t know which. What happened to our original wills that were on file in his law office? He just gave us copies. My husband and I do not want to change our wills. Are they still valid? Do they avoid probate? Is the only way to avoid probate is to get a living trust? Our largest asset is our home and some mutual funds.

Geraldine

Dear Geraldine,

Your wills are still valid, but they won't do your children much good unless they can find the originals. A photocopy of a will can be probated, but someone could contest the will by claiming that the original was revoked instead of just being lost.

A lot of attorneys offer to keep the original wills they prepare for their clients, at no charge. They do this so they can probate the estates of their clients. When a client dies, their children read the copy of the will and call the attorney whose name is stamped in big bold letters on the first page. That attorney is more likely to pick up the probate than anyone else. A locked filing cabinet full of wills is a potential goldmine of future probate work.

There are good reasons to let your attorney keep your original wills. If your wills are in your attorney’s safe, you do not have to worry about losing them. You may even be concerned that certain family members may go so far as to destroy your will to get a larger inheritance. If the will is in your attorney’s safe, that will not happen.

In your case, this backfired. After your attorney retired or died, his staff should have mailed the original wills to you and your husband. Of course, they may have tried that. If you moved without telling your attorney, then his staff had no way to return your original wills.

If they could not find you, they should have done one of two things. Your wills could have lodged with the Superior Court. Or, they could have transferred your wills to another attorney while giving notice to the California State Bar Association. Check with the Superior Court in the county where the lawyer had his office. If that doesn’t work, check with the State Bar.

You may be better off avoiding a wild goose chase and hiring another, younger, attorney to revise your estate plan. Wills do not avoid probate. After either you or your husband dies, the survivor between the two of you can collect the decedent’s estate outside of probate, if you own everything together as joint tenants or as community property with right of survivorship, but when the survivor dies, the estate will have to be probated in the courts. You can avoid probate, and probate fees, by getting a revocable trust. Since you need new wills anyway, you should see a new attorney who can advise you on all of your options.

Len & Rosie

Getting Married or Divorced? Consult with an Estate Planning Attorney to make sure your affairs are in order.

Dear Len & Rosie,

My friend’s husband died three months ago. She and her husband recently married, but had lived together for 30 years. He owned the house in his name alone. Unfortunately there was no will. He has a daughter from a previous marriage who is trying to take the house. Additionally, she’s been told that she’s not entitled to his Social Security. Is there anything she can do to keep the house? I just can’t believe his daughter is entitled to take something that was never hers.

Debbie

Dear Debbie,

Your friend’s husband died without a will. That means his home and everything else in his estate shall pass by intestate succession - the word “intestate” means “no testament” as in “Last Will & Testament.” Intestate succession the California Legislature’s best guess as to how most people would want their assets distributed when they die. It’s a shame our government declined to disinherit wicked daughters from prior marriages.

Your friend inherits all of the community property, but there isn’t any if he was already retired when they got married. She will also inherit either one-half of his separate property, if her husband had only the one daughter, or one-third of the separate property if he had more than one child. At best she’ll own only half of the home.

The only way your friend would be entitled to more than that is if she could prove that her husband promised to leave her everything, or at least the home, and that there’s a written contract or she acted to her own detriment in reliance of her husband’s promises. Please understand that this is a Hail Mary Pass and isn’t likely to succeed unless she has a lot of evidence in her favor.

Your friends could have avoided this if they had only made wills leaving everything to one another. They could have even made wills for free by downloading the California Statutory Will form from the California State Bar Association at www.calbar.ca.gov.  If he had wanted to protect his daughter too, he could have created a trust that gave his wife the right to live in the home until her death. But it’s too late for that. The best your friend can do now is to make a deal with her husband’s daughter. Maybe she’ll be willing to forgo selling the home now in return for inheriting the entire property upon her step-mother’s death.

As for Social Security, the rule is that you have to be married for one year for a surviving spouse to collect a pension off of the deceased spouse’s earning record.  If your friend’s husband died before their first anniversary, there’s nothing that can be done.

We hate to be the bearers of such bad tidings but we do so in the hope that readers of this column will take note. Everyone wants to save money, but with regards to estate planning, saving money in the short term frequently costs more money and creates more problems in the long term. Getting married or divorced is always a reason to consult with an estate planning attorney to make sure that your affairs are in order. If your friend and her husband had done that, she wouldn’t be in suchtrouble today.

Len & Rosie