What Not to Leave Behind When You Die

The following are real life examples that illustrate problems which could have been avoided if the decedent had planned ahead while alive.

Consider the father who died with no Will or Trust leaving behind a predatory girlfriend and a disabled son (heir).  Notwithstanding numerous requests from his family while he was alive, a divorced father with a living daughter did not do a Will or a Trust.  He died unexpectedly while with his girlfriend at a hotel.  After his death the girlfriend proceeded to take possession of his truck and to stay at the father’s residence.  The surviving daughter as heir to the entire Estate does not have legal grounds to remove the girlfriend until an administrator is appointed by the Probate Code.  That leaves the deceased father’s Estate – his residence and personal property – vulnerable to predators, including perhaps the girlfriend.  The lesson here is that if the father had transferred his residence and other assets into a Living Trust then the daughter could have secured his assets quickly after the father died, without any probate.

Consider the mother (of two children) who married in her seventies but did not update her separate property Living Trust to reflect her testamentary intentions.  Here the mother takes the risk, if she predeceases her current husband, that he will become automatically entitled to one-third of her separate property as an omitted spouse.  The lesson here is that if the mother updates her Living Trust she can specifically state her intentions not to leave any of her separate property to her current husband, should he outlive her.

Consider the father who dies leaving a second wife who did not get along with her husband’s son.  She automatically takes title to the couple’s residence as the surviving joint tenant, by filing an Affidavit of Death of Joint Tenant, and receives many bank accounts as the father’s designated death beneficiary.  The son is the Trustee of the father’s Living Trust that leaves everything to the father’s two sons.  The problem here is that the son cannot gain the cooperation of his step mother with regards to inventorying and collecting the father’s personal property at the residence that now belongs to the mother alone.  The lesson here is that had the father transferred the residence into the Trust the son as trustee (and thus owner of the residence) could not be denied entrance to the home for such purposes.  Instead a protracted and bitter confrontation ensued that finally led to the son gaining entrance to the home under difficult terms to remove the father’s personal property.

Take the mother who died naming her disabled daughter as death beneficiary to the mother’s IRA.  The IRA would disqualify the daughter from continued eligibility to receive needs based SSI/Medi-Cal benefits.  As a result she does not know what to do and does not take required minimum distributions from the IRA.  The daughter has to hire an accountant to appeal federal tax penalties and as her attorney I petition the court to establish a Special Needs Trust.  The lesson here is that the mother while alive could have created a Special Needs Trust for daughter and named it as the death beneficiary to her IRA.

The foregoing are just a sampling of what can go wrong after a decedent dies.  The overall lesson is that decedent’s who keep their Estate Planning up to date as their circumstances and the circumstances of their beneficiaries change do a great service for their loved ones.