How to Make a Free Estate Plan

Dear Len & Rosie,

I am married, and we have a 10 month old boy. We both work, but live paycheck to paycheck. We have a mobile home, which I bought before I met my wife. If anything happens to me, the house is hers. I do not even mind putting her on title. Now that we have a child, what paperwork should we be doing? Also, what paperwork do we need to do to say what we want to happen with our son if something happens to both of us?

Richard

Dear Richard

You and your wife do not need a trust, because you do not have an estate subject to probate in the courts. An estate worth less than $150,000 can be collected using small estate affidavits under California Probate Code section 13101, and the value of your automobiles and mobile home do not count against that limit.

What you need are wills, and the cheapest way to get one is to get one for free.  If you do an internet search for “California Statutory Will” you will find direct links to a free form will be written by the California Legislature. It’s available at the State Bar webpage under consumer information at www.calbar.ca.gov.

Be careful filling out the form. You want your estate passing to your wife if she survives you and then to your children if she does not. The form also allows you to nominate guardians who will have custody of your minor children if your wife dies before you. Her will should mirror yours. The wills must be witnessed by two adults who are not inheriting from you.  Please note that in California, wills are never notarized.

In addition to wills, you and your wife should have Advance Health Care Directives and Durable Powers of Attorney so that you may make important medical and financial decisions for one another in the event one of you should become incapacitated.

You should be able to get Advance Health Care Directive forms from your medical provider, or just email us at len@lentillem.com and we’ll send one to you. AHCD’s should be witnessed by two adults, one of whom can’t be related to you or inherit from you, or you can skip the witnesses and just have it notarized. 

For your DPOA’s, there’s a California Statutory Durable General Power of Attorney form you can search for on the internet.  It’s good for most purposes and should be signed before a Notary Public.

Keep in mind the risk of doing your own estate plan. You may make mistakes without knowing that you did, and not having an attorney review your completed documents does put you at risk that your estate plan won’t work the way you want it to.

Len & Rosie

Mother plans to leave son only $1 due to his Marijuana conviction

Dear Len & Rosie,

My mother has a trust. I am her sole successor trustee. I have two brothers and a sister. My mother is leaving my younger brother only $1, because he was once convicted of marijuana possession and he never calls or visits. She thinks he is still a dope smoking pothead. What would have been his share is to be divided up among my cousins and the church. As the trustee after my mother dies, am I able to ignore her wishes and give my brother his fair share of my mother’s property? How difficult is it to change it the way I see fit? This is really bothering me because it’s just not fair. I feel all of her children should be treated alike.

Suzanne

Dear Suzanne,

Your plan won’t work unless nobody cares what you do as trustee, which is hardly ever the case. You’re job is to marshal your mother’s assets and divide and distribute them to the beneficiaries named in the trust after paying off your mother’s debts and taxes.

The reason it won’t work is that you are obligated to provide a notice to all of the trust beneficiaries under California Probate Code section 16061.7 within sixty day of your mother’s death. This notice spells out that each recipient is entitled to a copy of the declaration of trust. You can’t hide it, because your brothers and sister aren’t going to take it lightly if you claim they don’t need a copy. One of them, at least, will see a lawyer who will notify them of their rights.

The rule to remember is simple. You can give away your money, but giving away other people’s money without their consent is something for which you may be held personally responsible. When you become trustee, you will take on a fiduciary duty to each of the beneficiaries, including your cousins and the church. If you ignore the terms of the trust and divide everything in the manner you believe to be fair, you will commit a breach of that duty.

If your cousins and the church ever find out about it, and they will, they can sue you. If they do, they will definitely win. That means your share of the trust will wind up going to your cousins and the church instead of your brother’s share.

You should also think about your mother’s wishes. She may be entirely justified in leaving your brother nothing. Maybe your mother wouldn’t mind so much that your brother smokes marijuana if he bothered to keep in touch with her. If he isn’t acting like a member of the family then why should your mother treat him like one?

Remember, it’s your mother’s money, not yours. The only valid definition of what’s right and what’s fair is the one in your mother’s heart. As long as she can make her own decisions, your mother can leave her property to whomever she sees fit. If you want to change this, try to reconcile your mother with her prodigal son.

Len & Rosie