Clear Testamentary Intent Simplifies Probate
Get It Right
Probate is simply the court supervised administration of your estate. Basically, you spell out what you want to happen in your will and the court makes sure that it happens. If you do not specify what should happen, the judge must turn to the law to fill in the gaps. The judge uses the laws of intestacy to distribute your estate, if you do not have a will. Basically, community property passes to your spouse. Your separate property is divided among your spouse and your children according to the law. If you do not have a spouse, your property passes first to your children. If you have no children, your estate passes to your parents. If your parents have predeceased you, your estate passes to your siblings. If your siblings are also not living, then your estate passes to their children, and so on. The laws of intestacy are pretty straightforward.
Matters can get more complicated if you have a will and are not specific enough, or your will is outdated. Using the legal guidelines, the judge must try to determine what your intent was. Unfortunately, the law may lead the judge to results that you may not have intended or expected. In California, divorce revokes any gifts or bequests to a former spouse. If you do not revise your estate planning documents following a divorce, you may have the unexpected result of dying intestate. For example, if your will only provides “everything to my spouse,” and nothing else, and you divorce, by virtue of the law, you have made no provisions for the distribution of your estate. As a result, your estate would pass under the laws of intestacy and may pass to persons you did not intend to benefit, or may omit persons you specifically wanted to benefit. If your sibling is still living, for instance, he or she would receive your estate and your favorite niece or nephew, to whom you want to leave everything, would not receive anything. Similarly, if a beneficiary named in your will dies and you do not name a contingent beneficiary, there may be no provision for the distribution of your estate. You could die intestate.
A new case from the California Supreme Court, Estate of Irving Duke, holds that “an unambiguous will may be reformed to conform to the testator’s intent if clear and convincing evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and also establishes the testator’s specific intent at the time the will was drafted.” Following this case, extrinsic evidence can now be introduced to prove the testator’s intent not only for ambiguous wills, but also for unambiguous wills when there is clear and convincing evidence that a mistake in the testator’s intent existed and that there was a specific testamentary intent.
This result seems all well and good, but what if there is no extrinsic evidence – no notes or other evidence showing what your intent was. Don’t leave anything to chance. To guide the judge and avoid unexpected results, your will should specifically name your intended beneficiaries, as well as contingent beneficiaries, and should be updated whenever something in your family changes. Have your will drafted or reviewed and updated by a Sonoma County estate planning attorney.