Showing posts with label Children. Show all posts
Showing posts with label Children. Show all posts

November 27, 2013

Who Can Initiate Probate?

June 7, 2013

Class Gift

On occasion, a person will want to leave an inheritance for a group of relatives. This is known as a class gift. For example, a person could write a will or trust that gives $100,000 to be split amongst his "grandchildren."

If a person writes a class gift clause in a
document, there are a couple of issues to take into considerations. 

First, the person should specify what will happen if one of the beneficiaries predeceases the person. This is known as lapse. In order for a beneficiary to inherit, they must survive the person.
Assume Thierry wants to leave a gift of $100,000 to his 4 grandchildren as a class gift: Laurent, Bacary, Gael and Mathieu. Gael passes away in a tragic hot air balloon accident in 2013 . Thierry then passes away in 2014 (yes I can predict the future). 

The question then posed is whether Gael's $25,000 inheritance goes to the other grandchildren or some other person. It would be prudent for Thierry to delineate what happens to the share of a predeceased beneficiary, namely Gael. He could either state that the Gael's share goes to the surviving grandchildren, the residue of his estate or something else. Regardless, it is best to be precise because resolving an ambiguity in a will is typically arduous, lengthy and costly.

Second, the person should define the class. For instance, if the gift is to the children, they should specify how "child" is to be defined. 
For example, child does or does not include an adopted child, a step-child, a child born out of wedlock, etc. By not defining the term, relatives can conveniently come out of the woodwork and claim to be a rightful beneficiary. Money, rightfully or wrongfully, is a great motivator in life.

Third, the person should specify when the interest vests. For example, the person should mention if the inheritance is payable immediately when they die or the beneficiary must wait until a later time to collect. It is common to withhold an inheritance from a young person given the typical inclination of youth to engage in profligate spending. Hence, a clause which provides for distribution when the beneficiary reaches 25 is common.  Furthermore, it is imprudent to provide a child with a large inheritance. Generally speaking, if a child receives greater than a $5,000 inheritance outright, a court-supervised guardianship will be needed until they turn 18. This guardianship is both time-consuming and expensive.

October 26, 2012

Domestic Partnership

In law, much like life, close enough is sometimes not good enough. As the saying goes, close enough is only good in horse shoes or hand grenades. Although having played bocce ball and shuffleboard a few times, close enough does apply to those activities as well. Regardless, a recent California Court of Appeal decision held that close enough was not good enough for the beneficiary of a pension.

Burnham v Public Employees' Retirement Sys. (2012) 208 CA4th 1576

John Burnham had a pension through the California Public Employees' Retirement System (Cal PERS). In 2006, Mr. Burnham developed bone-metastasized prostate cancer. In that same year, he listed the beneficiary of his pension as the "Estate of James E. Burnham." Shortly thereafter in July 2006, Mr. Burnham retired. 

In October 2007, Mr. Burnham became extremely ill and the couple decided that they should register as domestic partners so that Ms. Honeyman would be entitled to take time off of work to care for Mr. Burnham. 

"Burnham and Honeyman signed the declaration of domestic partnership in their house at approximately 9:00 a.m. on Saturday, October 27, 2007, in front of a notary. At 4:30 p.m. Burnham died. He was 67 years old. The following Monday, October 29, 2007, Honeyman hand delivered the declaration of domestic partnership to the Secretary of State's Office in Fresno. The clerk filed it and the Secretary of State issued Burnham and Honeyman a certificate of registered domestic partnership dated October 29, 2007."

Ms. Honeyman then applied for Burnham's state pension survivor benefits. Following a number of decisions by Cal PERS and an administrative law judge, Cal PERS ultimately decided to award Ms. Burnham the pension benefits. The children of Mr. Burnham appealed this decision to Sacramento Superior Court, where the judge ruled in favor of the children. Ms. Honeyman then appealed the trial court's decision to the 3rd District Court of Appeal.

The children became involved because they would inherit the pension benefits if Ms. Honeyman was found not to have been Mr. Burnham's domestic partner. The reason being is that the children were Mr. Burnham's heirs if no domestic partnership existed. Naturally then, the children had an incentive to contest Ms. Honeyman's domestic partnership claim. 

One of Ms. Honeyman's arguments on appeal was that she was the domestic partner of Mr. Burnham. The fact that the declaration was filed after Mr. Burnham was irrelevant in her opinion because it was only a ministerial act. She believed that simply signing the declaration was sufficient to establish a domestic partnership. The filing aspect was merely a trivial formality.

In regards to her domestic partnership claim (she presented additional arguments as to why she should be awarded the pension), the Court of Appeal held that the plain language of the statute required that both parties appear when filing the declaration. In particular, Fam C § 297(b) states "a domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division." Since it was impossible for the couple to file the declaration together, one of them was dead, they could not comply with the statute. Therefore, the couple was not considered a domestic partnership. The result was that the children were deemed the heirs of Mr. Burnham's estate (the Court of Appeal disagreed with Ms. Honeyman's other arguments).

The facts of this case are quite amazing. If Mr. Burnham had lived a few more days, the couple could have been able to file the declaration jointly, a domestic partnership would have been established and Ms. Honeyman would in all likelihood inherit Mr. Burnham's $100,000 pension benefits. Yet in reality, Mr. Burnham died almost immediately after signing the declaration, rendering it ostensibly useless. Unfortunately for Ms. Honeyman, close enough was not good enough and she was out $100,000 plus presumably thousands of dollars in attorney fees to litigate the matter at the trial court level and then appeal.

June 2, 2012

Astrue v. Capato - Posthumously Born-Children

A recent Supreme Court Case addressed the eligibility of posthumously born-children in regards to social security survivors benefits. Of note, a posthumous child is one who is born after the death of the parent. Yes, it applies to both men and women.

In 1999, Robert Capato was diagnosed with esophageal cancer. Concerned that his cancer treatment would cause him to become sterile, Robert donated his sperm to a sperm bank as a preventative measure. Still, following his initial treatment, Robert remained fertile and he and his wife, Karen, conceived a son. Unfortunately, Robert's condition worsened and he succumbed to cancer in 2002 while residing in Florida. 18 months later, Karen gave birth to twins as Robert's deposited sperm had been used to impregnate Karen. In vitro fertilization was used because the Capatos wanted their son to have a brother or sister.

Thereafter, Karen applied for social security survivors insurance benefits on behalf of the twins. The claim was rejected by the Social Security Administration because Florida law stated that a child could inherit through intestate succession only if conceived during the decedent's lifetime. Of note, the SSA utilizes state intestacy law when determining eligibility for social security survivors insurance benefits. Since Robert was domiciled in Florida when he died, that jurisdiction's law applied to the SSA's determination. Since the twins were born after Robert passed away, posthumous that is, they were ineligible to receive social security survivors benefits.

The Supreme Court held that the SSA ruled correctly, i.e. it correctly relied on Florida law in making the determination, and denied the Capato twins social security survivors insurance benefits. I will spare you the boring explanation of statutory construction, which is what this case represented. Yes, not all Supreme Court cases involve the federal constitutionality of a statute, ordinance, initiative, etc. 

For comparative purposes, California has a more expansive view of posthumous children.  The Golden State allows for the establishment of a parent-child relationship if certain conditions are met. To name a few of the requirements, the deceased parent must state in writing that their genetic material can be used for posthumous conception, a person must be designated by the deceased parent to control the use of the genetic material and the child must be in vitro within 2 years following issuance of a certificate of a decedent's death. Prob C § 249.5.

December 14, 2010

Crummey Trust

The following are questions commonly associated with Crummey Trusts:

1. What is a Crummey Trust?

A Crummey Trust is a trust in which the beneficiary, a child for example, has the power to withdraw monetary contributions made to a trust for a short period of time, 45 days for example, such that the transfer qualifies for the annual gift exclusion. IRC §2503(b). Once the withdrawal period has expired, the contribution becomes subject to the terms of the trust.

2. What purpose does a Crummey Trust serve?

A Crummey Trust is used to obtain the annual gift tax exclusion through the medium of an irrevocable trust.

For illustrative purposes, the following hypothetical should be helpful:

Samuel is a wealthy industrialist who would like to gift money to his teen aged children Bobby and Beth. Rather than give the money to his children outright, which would be most likely considered imprudent given teenager immaturity. Samuel decides to create a Crummey Trust so that he can take advantage of the annual gift tax exclusion while simultaneously keeping the trust in control of the money. 

Samuel appoints Theo to become the trustee of his childrens' Crummey Trusts by giving him $13,000 to hold in trust for Bobby and $13,000 to hold in trust for Beth. Each year thereafter, Samuel gives Theo $13,000 for Bobby's trust and $13,000 for Beth's trust. By gifting the money through a Crummey Trust, Samuel avoids having to pay gift tax for these contributions. Also, Samuel does not have to worry about his children quickly frittering away the money because the trust will restrict when distributions are made.

3. Who is the intended beneficiary of a Crummey Trust?

A child is the intended beneficiary when making a Crummey Trust.

4. Are there ongoing requirements?

Yes, each time a person gifts money (or property) to the trust, notice needs to be given to the beneficiary informing them of their ability to withdraw all or some of the contribution from the trust within a certain number of days. There is no definitive rule on the duration of the power to withdraw, although the IRS has allowed the annual exclusion for periods as short as 15 days. See, e.g., Estate of Maria Cristofani (1991) 97 TC 74, acq 1992-1 Cum Bull 1, acq 1996-2 Cum Bull 1.

For illustrative purposes, presume that on March 1, 2010 Samuel donates $13,000 to each child's Crummey Trust. Thereafter, Theo the trustee gives notice to Bobby and Beth that they may withdraw all or some of this $13,000 from the trust within 30 days . While each child has the ability to withdraw the $13,000, it is highly unlikely that either child would do so because this will strongly discourage Samuel from ever donating money to the child's Crummey Trust. Regardless, once those 30 days have elapsed, namely come April 1, 2010, the $13,000 for each child becomes the property of each's Crummey Trust.

5. Is a Crummey Trust irrevocable?

Yes, a Crummey Trust is irrevocable. Thus, once a person creates a Crummey Trust, they cannot later on revoke it. This is particularly important, since most trusts written in California, colloquially referred to as "living trusts", can be revoked.

6. Where does the name "Crummey Trust" come from?

The term "Crummey Trust" is derived from the court case which validated its usage. Crummey v Commissioner (9th Cir 1968) 397 F2d 82.

7. How much does it cost to write a Crummey Trust?

There is no mandatory minimum or maximum attorney fee to draft a Crummey Trust.

8. In light of the attorney fee, can I write my own Crummey Trust?

Yes, California law explicitly says that you may act as your own lawyer. However, given the technicalities associated with a Crummey Trust, it is not a document that can be easily drafted by a non-attorney. Frankly, few legal documents should ever be drafted without the assistance of an attorney.

Furthermore, since a Crummey Trust involves large sums of money, it is logical to presume that a person wanting a Crummey Trust can afford the attorney fee to create a Crummey Trust. 

November 10, 2010

Estate Planning Mistakes

The following are some common estate planning problems I have seen over the years.

1. Adding a child's name to the title of the family home

Parents often wish to leave their entire estate to their children. One imprudent method of doing this is to add a child's name to the title of the home by partially transferring the parents' interest in the home to include the child as well. For example, Hal and Wendy have two children, Samuel and Donna. They decide that both should inherit the home once both of them have passed away. They execute a deed transferring their interest in a home to include their children as well. Thus, the deed to the home now reads that it is owned by Hal, Wendy, Samuel and Donna.

There are two reasons why this procedure is not recommended at all. 

First, since Samuel and Donna are owners of the home, they can force what is known as a "partition action." In a partition action, the property is either physically divided up and distributed to the owners in proportional to their interest, sold and the proceeds distributed in accordance with the ownership interests or one party buys out the interest of the other party. CCP §§873.210-873.290; CCP §§873.510-873.850; CCP §§873.910-873.980. Each owner has a right to seek a partition action subject to waiver. CCP § 872.710(b). Essentially, if one owner seeks a partition action, there is nothing a co-owner can do to stop it. From our example, if Samuel and Donna become fed up with their parents for whatever reason, say they failed to let them stay out late one evening when they can back from college, they can petition a local court to partition the family home, regardless of any objections by Hal and Wendy.

Second, adding a child's name to the family home is foolish because of liability reasons. Most assets are subject to recovery if a creditor obtains a court judgment against the debtor. For example, if Samuel ran over an unsuspecting bicyclist with his car and the injured bicyclist won a judgment against Samuel in civil court, Samuel would be personally liable for this judgment. This means that most of his assets would be subject to attachment by the bicyclist. Consequently, the bicyclist would be very pleased to see that he could attach a judgment lien to the property that Samuel owned with his parents. By placing a judgment lien on the property, this would prevent the sale of the home until the judgment lien was paid off. So if Hal and Wendy ever decided to sell the home, they would have to either pay off the judgment lien in full or negotiate a reduced price. 

2. Failure to observe formalities

The legal system is very much interested in formalities. Certain formalities must be met in order for a document or legal action to be considered valid. For example, typewritten wills in California require that 2 witnesses sign the will. Prob C § 6110(c). This means that a notarized signature will not suffice because a notary is only 1 person. Thus, the fact that you had your will notarized is a clear indication that it is probably not valid. For whatever reason, many people believe that 1 notary equals 2 witnesses for executing a will, which is clearly not true.

3. Selecting the wrong trustee of a living trust

Besides the beneficiary designation, the biggest question a person confronts when writing a trust is who will be the successor trustee. The choices include family members, friends, professional trustees, trust companies and attorneys. Often times a family member is selected and major problems ensue because the family member is ill-prepared to handle such a responsibility.

4. Oral estate planning   

It is not uncommon to hear a disgruntled heir state "Aunt Gertrude told me when I was young that I would inherit her antique brooch when she passed away." Yes we all have been the recipients of a statement by a relative promising us something when they pass on. 

The good news is that these statements make us feel happy because it shows that our relatives care enough about us to see us inherit a prized possession of theirs. The bad news is that these statement have speculative legal value at best and thereby most likely not to persuade a court as to its veracity. Prob C § 15207. In particular, most attorneys cringe when they hear about oral agreements pertaining to an inheritance because if the matter was so important it would have been written down. As the saying goes, "talk is cheap" and most people will casually throw around all sorts of ideas. Yet when given the opportunity to express their thoughts on paper, people often have a change of heart and refuse to spell out their testamentary intentions.

5. Avoidance of creditors by transferring property pre-death

People regularly incur a large amount of debt in the latter stages of their life due to costly life-prolonging medical care. Cognizant of this debt, people mistakenly assume that if they transfer their assets to the beneficiaries of their will or trust before they pass away, their creditors (medical insurance company, credit cards, etc.) will have no recourse against them because the property is not in their control. 

For instance, Dan had health problems and owed Chase Bank roughly $50,000 in credit card debt due to medical charges. Dan had written in his will that his friend Ezekiel would inherit his home upon his death. Rather than have Chase Bank place a judgment lien on the property, Dan transferred his interest in the home to Ezekiel one month before he passed away, assuming that the transfer would allow Ezekiel to inherit the home free and clear of any claim by Chase Bank.

However, California law provides creditors many legal remedies if the transfer was done to defraud a creditor's attempt to recover a lawful debt owed. Uniform Fraudulent Transfer Act CC §§3439-3439.12. In this case, Chase Bank could see that Dan transferred the home to Ezekiel even though Dan surely had to know that he owed Chase Bank $50,000. Thus, Chase Bank could successfully pursue a lawsuit against Dan's estate for fraudulently conveying the property to Ezekiel. Chase Bank could then either nullify the transaction, attach their claim to the home via a judgment lien, or prevent a future transfer of the home by Ezekiel. CC § 3439.07. 

October 21, 2010

Guardianship of a Minor

A probate guardianship is a judicial process in which a guardian is appointed to protect the minor's estate or person or both. Prob C § 1510. A minor is a person who is under the age of 18. Fam C § 6500.

A probate guardianship appointment can be undertaken when (1) a responsible relative or friend is already caring for a minor whose parents have passed away deceased, are habitually absent from parenting, incapacitated or incarcerated, and (2) the relative or friend is willing to assume legal obligations for caring for the minor, without adoption, and the parents either do not oppose the appointment or parental custody would be harmful to the minor.

The person petitioning for the guardianship can apply to be the minor's guardian of their person or estate, or both. The following paragraphs explain what each guardianship entails.

A probate guardian of the person is responsible for (Prob C §§2351-2353):

1. Determining where the minor lives;
2. Making sure that the minor is properly fed, clothed and sheltered;
3. Supervising the minor's conduct;
4. Making sure that the minor is enrolled in school; and
5. Making sure that the minor has proper medical care.

A probate guardian of the estate has a duty to:

1. Control and preserve estate property (Prob C §16006);
2. Segregate guardianship estate property from other property including the guardian's own personal assets (Prob C §16009);
3. Avoid conflicts of interest, including:
a. Using or dealing with estate property for personal profit (Prob C §16004);
b. Taking part in any transaction in which the guardian has an interest adverse to the minor's; and
4. Hold the minor's property for the minor's benefit until the minor reaches 18 years of age.

The minor's guardianship of their estate or person or both lasts until the minor reaches the age of 18 or when good cause is shown that the guardianship is no longer in the minor's best interest. Prob C § 1600(a); Prob C § 1601.

March 10, 2010

Prop 13

When somebody inherits a home via a will, trust, intestacy or by gift, it is not necessarily true that the value of the home will be re-assessed for property tax purposes. 

This can be especially important to a beneficiary who inherited a home from his parents or grandparents since they probably had a low base year value of their home. For example, if Bobby Beneficiary inherited a home, currently valued at $1 million dollars, from his late parents who had purchased the home for $50,000 decades ago, he would not be liable to pay property taxes on the assessed value of $1 million dollars but rather on $50,000, plus annual adjustments. (See Example 4).

Of note, Proposition 13 caps the levying rate for property taxes in California at 1%. Cal Const art XIIIA, §1.

The following are examples of situations in which the transfer will not result in a “change in ownership” and thereby avoid the dreaded re-assessment for property tax purposes. 

1. Transfers in which proportional ownership interests remain the same before and after transfer 

For example, Husband and Wife own a rental home in joint tenancy (50/50 split) and transfer it to a limited liability company in which they have same membership interest (50/50 split). Rev & T C §62(a). 

2. Transfers to revocable trusts 

For example, Husband and Wife execute a revocable (living) trust and transfer the home they live in into the trust by transferring title from themselves to the trust by naming the trustee of their revocable trust as owner. Rev & T C §62(d). 

3. Interspousal transfers 

For example, Husband and Wife own their home in joint tenancy, Husband dies and Wife inherits the other half of the house. Rev & T C §63. 

4. Parent-child (or grandparent-grandchild) transfer 

For example, in the case of a Parent-Child transfer, Husband and Wife own a home and have one child, Son. Husband and Wife pass away and Son inherits the home. Furthermore, in the case of a Grandparent-Grandchild transfer, Grandparent is only survived by a Grandchild, that is no child of the Grandparent outlives the Grandparent. Rev & T C §62. 

5. Persons over age 55 or who are severely and permanently disabled may transfer the base-year value of a residence to a replacement dwelling in the same county, or in another county if the board of supervisors of that county adopts an ordinance granting base-year-value relief to replacement dwellings when the original dwelling was located in another county 

As of this writing, seven counties (Alameda, Los Angeles, Orange, San Diego, San Mateo, Santa Clara, and Ventura) have ordinances granting base-year-value relief to replacement dwellings when the original dwelling was located in another county per Rev & T C §§ 68-69.5. For example, Person purchases a home in San Jose (Santa Clara County) and upon reaching the age of 55 sells their home in San Jose in order to purchase a home in Redwood City (San Mateo County) so they can be closer to their family.

February 19, 2010

Inheritance Rghts of Children

Individuals often wish to leave part of their estate to a child, whether it is their child, a niece, nephew, grandson, granddaughter, cousin, etc. 

This transfer of assets is not very complicated if the child is considered an adult, namely the child is at least 18 years of age. However, if the child is under the age of 18, he or she is considered a minor. Fam C §6500.

Consequently, in the eyes of the law, minors lack legal capacity in certain aspects. For example, minors cannot consent to their own medical treatment with certain exceptions nor can they contract or exercise the rights and powers of ownership over property. Fam C §§6920-6929; Fam C §§6700-6753. Furthermore children, specifically teenagers, are notoriously imprudent spenders of money and thereby the danger of a teenager squandering their inheritance after a few trips to the local mall is readily apparent.

In light of a child’s legal handicaps and propensity for wasteful spending, there are various options an individual can exercise to ensure that the child’s inheritance is secure.

1. Less than $5k

If the individual is not the mother or father of the child, they may deposit with the child’s parent up to $5,000 that will to be held for the child's benefit until he or she reaches the age of 18. Prob C §§3400-3402.

2. Over $5k

If the bequest is over $5,000, a court may authorize that the money be deposited in a blocked account or may authorize the purchase of a single-premium deferred annuity. Prob C §3413(a). Withdrawals may not be made from the blocked account except on court order and the balance must be paid to the minor at age 18. Prob C §§3300, 3413(a).

3. California Uniform Transfers to Minors Act (CUTMA)

An individual may establish a custodianship for the child’s benefit with a bank or brokerage firm through the California Uniform Transfers to Minors Act (CUTMA). Prob C §§3900-3925. Of particular significance, in a CUTMA account the individual can delay the child’s ability to access the money up to the age of 25. Prob C §3920.5.

4. Trust

An individual may establish a trust for the benefit of the child that can last for the entire child’s life if sufficiently funded. Please see prior postings on trusts on this blog and my website for further detail.

5. Guardianship

If no prior planning has been made for the child’s inheritance, a guardianship of the child’s estate may need to be established. In a guardianship, the court appoints a person to oversee and manage the child’s property. This is probably the worst arrangement because a guardianship requires the filing of an annual accounting with the court which is quite expensive. Prob C §1513.2.

6. College Savings Account

An individual may create an education savings account by either starting a college savings account (See Internal Revenue Code Section 529) or a Coverdell Education Savings Accounts (See Internal Revenue Code Section 530).

August 5, 2009

California Anti-Lapse Statute

It is not uncommon for the person entitled to something in a will, the beneficiary, to die before the person who wrote the will, the testator. In such case, the gift lapses or fails. A beneficiary needs to survive the testator in order to take the bequest. Prob C § 21109. 

However, if the beneficiary is related by blood to the testator or the testator's spouse (surviving, predeceased, or former), the descendants of the deceased beneficiary take the gift in his or her place, unless the will provides for an alternate disposition. Prob C §21110. This is known as California’s Anti-Lapse Statute. 

Yet if the deceased beneficiary is not related by blood or does not have living descendants, and no alternate disposition is provided in the will, the gift lapses and becomes a part of the residue of the estate. Prob C §21111(a)(2).

For example, suppose Tom wrote a will leaving his favorite car to his beloved brother Bob and everything else, the residue of his estate, to his friend Richard. Bob then dies before the Tom passes away and thereby the gift to Bob would lapse because Bob did not survive Tom. Yet because of California's Anti-Lapse statute, Bob’s gift of the car would pass to his children if he had any. Prob C §21110. Although if Bob did not have any children the gift of the car would pass to Richard because he is the residual beneficiary and Tom did not specifically provide for a contrary intention or a substitute disposition in case Bob died before him. Prob C §2110.

July 18, 2009

Omitted Spouse or Child

It is common for a person to write a will or trust (called a testator for wills/settlor for trusts) before he or she marries, or to write a will or trust before he or she has another child when they already have one. The former is known as a “pretermitted spouse” or “omitted spouse” and the latter is known as a “pretermitted child” or “omitted child." The reason why this is important in estate planning is because that pretermitted spouse or child or both is entitled to a portion of the testator’s estate even if the testator has failed to mention the spouse or child in their will. Prob C §§21610-21612; Prob C §§21620-21623. Thus, the people named in the will or trust (the beneficiaries) might have to share their distribution with the spouse or child or both even if the testator did not wish for such.


For example, unless an exception applies, a pretermitted spouse is entitled to one-half of the community property, one-half of the quasi-community property and a share of the deceased married person's separate property equal in value to the share that the spouse would have received if the decedent had died intestate, but in no event more than one-half the value of the separate property in the estate. Prob C § 21610. However, per Prob C §21611, there are three circumstances in which the above does not apply:

1. The deceased married person's failure to provide for the omitted spouse was intentional and that intention is apparent from the relevant testamentary instrument (see explicitly disinherited);

2. The decedent made transfers to the surviving spouse outside the testamentary instrument intended to be in lieu of a provision in the decedent's will or trust to provide for the spouse, as shown (a) by the decedent's statements, (b) from the amount transferred, or (c) by other evidence (see large documented gifts); or

3. The surviving spouse signed a valid agreement waiving the right to share in the decedent's estate (very rare circumstance).


In the case of a pretermitted child, if a testator fails to provide by will or trust for a child born or adopted after execution of the will or trust, the surviving child is entitled to take from the estate that share of the decedent's estate that would be the child's share if the decedent had died intestate. Prob C § 21620. Please see this prior posting on intestacy for further explanation. However, as in the case of a pretermitted spouse, a pretermitted child is not entitled to his or her intestate should any of the following occur:

1. The testator intended not to provide for the child, and that intention "appears from the will" (Prob C §21621(a));

2. The testator had a child or children when the will was signed and devised "substantially all the estate" to the other parent of the omitted child (Prob C §21621(b)); or

3. The testator provided otherwise for the child, and the intention that the provisions were made instead of testamentary gifts is "shown by statements of the decedent or from the amount of the transfer or by other evidence" (Prob C §21621(c)).

The conclusion that should be drawn from this is that if you wrote a will or trust before you were married or had additional children after you drafted a will or trust, you should look over it to make sure you do not have an issue with a pretermitted spouse or a pretermitted child because otherwise the California Probate Code might alter your estate plan against your wishes.