Law of Office of William J. Sweeney

Law of Office of William J. Sweeney

What happens to my Will if I get a divorce?

by William J. Sweeney on 03/03/15

(Mr. Sweeney is an attorney licensed in California. The comments below are not intended as legal advice for any specific situation and may not accurately reflect the law in other jurisdictions. There may have been changes in the law since this was written. You should always consult an attorney in your own jurisdiction.)

A common question arising from time to time relates to the impact of divorce, legal separation or annulment on a person’s Will. California law currently provides unless otherwise specified in the Will, all rights to inherit by the spouse are terminated upon entry of the final judgment of dissolution, legal separation or annulment. The same rules apply with regards to the termination of a Domestic Partnership.

Interestingly enough, Probate Code Section 6122 which sets forth these provisions does not address the impact of the divorce as it relates to the children of the divorced spouse. Arguably, if the person writing the Will doesn’t want their former spouse to inherit, most likely they don’t want the spouse’s children to inherit. Unless specifically referenced in the will, or possibly by some other evidence of a continuing relationship with the spouse’s children, it is unlikely the spouses children would inherit.

For number of years, California courts have included a warning on the Final Judgment of Dissolution of Marriage advising parties the dissolution can affect their Will or other contractual relationships with the former spouse.

I strongly recommend if you get a divorce, one of the first things you should do is have a new Will prepared. Not only to eliminate any possibility of someone inheriting the property when you would not want them to receive it, but also by eliminating the former spouse from the Will, it will alter the ratio of amounts other people receive as an inheritance.

A few minutes of your time with an experienced attorney can potentially save your heirs significant time, effort and expense in the administration of your estate and ensure the property goes to the people you intend to receive it.

William J. Sweeney

Attorney at Law

915 Highland Pointe Dr., Ste. 250

Roseville, CA 95678

(916) 786-2011

Letting your family know your wishes if you are in an accident or have a serious illness is important!

by William J. Sweeney on 02/24/15

(Mr. Sweeney is an attorney licensed in California. The comments below are not intended as legal advice for any specific situation and may not accurately reflect the law in other jurisdictions. There may have been changes in the law since this was written. You should always consult an attorney in your own jurisdiction.)

As we age, no matter how healthy we are, we know at some point our life will end. Frequently, our death is preceded by an illness from which recovery is highly improbable. Many times, application of various medical procedures can delay the inevitable for a few hours, days or weeks. Over the years I have talked to many clients about this subject and their opinions are divided.

Some people don’t want any extraordinary efforts made to keep them going if they are not going to get better. Others express a desire to continue on as long as possible, by whatever means. It is a matter of individual choice, and there is no right or wrong answer.

In my experience it becomes a problem when the decision needs to be made as to scope of services you could receive, and you have reached the point you cannot personally express an opinion. I have encountered numerous situations where the family is split. If there is no hope of recovery, some want to keep you comfortable and let go. Others can’t bear to make that decision and want to use every possible resource to keep you going. This disagreement can cause an amazing amount of anguish for the family and, depending on the circumstance, possibly entail considerable cost. The decision ultimately made might not be the one you would have chosen.

A simple way to avoid this scenario is to complete the Physician Orders For Life-Sustaining Treatment (POLST) form. Completion of the form is voluntary. The form is free and can be downloaded off of the Coalition for Compassionate Care of California website. It is available in a number of languages, including braille, Here is the link to that site:

http://capolst.org/polst-for-healthcare-providers/forms/

This is a form you and your doctor complete.

A few minutes of your time now can possibly help adding additional stress to an already difficult time.

William J. Sweeney

Attorney at Law

915 Highland Pointe Dr., Ste. 250

Roseville, CA 95678

(916) 786-2011

My father is a little “forgetful”, can he still make a Will or Trust?

by William J. Sweeney on 02/17/15

(Mr. Sweeney is an attorney licensed in California. The comments below are not intended as legal advice for any specific situation and may not accurately reflect the law in other jurisdictions. There may have been changes in the law since this was written. You should always consult an attorney in your own jurisdiction.)

"Capacity" always should be considered when someone is creating a Will or Trust. Most of the time, everyone is satisfied the individual knew what they were doing when the Will or Trust was created, unless the person has exhibited some signs of dementia or reduced understanding, either prior to execution of the documents, or within a short time thereafter. Capacity sometimes is not a "black and white’ issue.

The courts in California have held there is essentially a "sliding scale" on capacity as the complexity of the document increases. Less capacity is required for preparing a simple Will or Trust and the standard is set forth in Probate Code Section 6100.5,

Probate Code Section 6100.5, which is specifically directed at the creation of Wills, describes who is not mentally competent to make a Will. It states an individual is not mentally competent to make a Will if at the time they make the Will either of the following is true:

1) The individual does not have sufficient mental capacity to be able to:

a) Understand the nature of the testamentary act,

b) Understand and recollect the nature and situation of the individual’s property,

or,

c) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individuals devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.

While capacity to create or amend a Will or Trust would seem to be evaluated under Probate Code Section 6100.5, the courts have held that standard is not always applicable. As the document becomes more complex, the standards set forth in California Probate Code Sections 810-813 relating to capacity to contract may apply.

A recent California case, Lintz v. Lintz (2014) 222 Cal.App.4th 1346, involved the creation and subsequent modification of a Trust with substantial assets and other issues. The court held the capacity of a person creating a Trust in this case should be measured against the higher criteria set forth in Probate Code Sections 810-813, while someone creating a simple Will can be measured against the criteria set forth in Probate Code Section 6100.5.

Although each situation must be evaluated separately and on its own merits, it appears the court is saying the more involved your personal situation is and the complexity and value of your assets, the more closely your capacity may be scrutinized and you may be held to a higher standard of capacity at the time your create or amend the document.

It is always a good idea to get professional advice from an experienced attorney to avoid problems later.

William J. Sweeney

Attorney at Law

915 Highland Pointe Dr., Ste. 250

Roseville, CA 95678

(916) 786-2011

 

I own a gun. Can I transfer it by my Will or my Trust?

by William J. Sweeney on 02/10/15

(Mr. Sweeney is an attorney licensed in California. The comments below are not intended as legal advice for any specific situation and may not accurately reflect the law in other jurisdictions. There may have been changes in the law since this was written. You should always consult an attorney in your own jurisdiction.)

It should come as no surprise there are millions of gun owners in the United States. Whether you are in favor of personal possession of firearms or against it, the reality is many people legally own various types of firearms. Some people like to hunt, enjoy target shooting, feel it necessary for personal safety or collect firearms for a hobby.

Because of this proliferation of firearms, it is very common for firearms to be involved in the distribution of an estate. While many people are vaguely aware there are laws relating to the transfer of firearms, the majority have no idea how many laws there are, and the potential difficulty in complying with them.

The federal government has two different sets of laws relating to the transfer of firearms. The first, known as the National Firearms Act was passed in 1934. It was specifically directed to affect certain firearms generally associated with criminal activity and organized crime. If you’ve seen the old movies about Al Capone, Bonnie and Clyde and their like, you probably have a pretty good idea what type of guns are covered by this act.

After the federal government decided too many firearms were not covered under the National Firearms Act, the government passed the Gun Control Act in 1968. It significantly broadened the scope of firearms covered by federal law. Other laws were subsequently passed.

In addition to federal regulation, California has its own laws defining what constitutes "firearms", "handgun", "antique handguns", "curios" and "relics" and how they may be owned, transported and transferred.

When firearms are involved with an estate, a variety of issues arise including but not limited to, who has possession of the firearm, who is to receive the firearm and who is going to make sure all federal and state laws have been complied with. If you are the party creating the will or trust, I most strongly urge you to contact an attorney familiar with transfer of firearms, even if you only have one weapon.

Aside from all the legal technicalities relating to the transfer of firearms, there are numerous persons who are prohibited from possessing a firearm. Under federal law, these can include, but are not limited to, people who have been convicted of a felony, an unlawful user of or someone addicted to controlled substances, someone who has been committed to a mental institution, someone who is subject to a restraining order from an intimate partner and found to present a credible threat, and in some cases a person convicted of a misdemeanor crime of domestic violence. California law expands the list further.

This subject is far too complex to attempt to cover all possible variations and potential pitfalls involved. It is simply to make you aware that if you are anyway involved in the transfer of firearms, even if you are simply in the middle of the transaction, you need professional advice!

If you are the executor or administrator of an estate, or the trustee of a trust and are responsible for distribution of estate assets that include firearms, you need to be sure you act properly in order to avoid liability. The transfer of firearms in these situations can be a "minefield", figuratively speaking. There can be both civil and criminal penalties for violation of the law.

William J. Sweeney

Attorney at Law

915 Highland Pointe Dr., Ste. 250

Roseville, CA 95678

(916) 786-2011

Can I just write my own Will?

by William J. Sweeney on 02/03/15

(Mr. Sweeney is an attorney licensed in California. The comments below are not intended as legal advice for any specific situation and may not accurately reflect the law in other jurisdictions. There may have been changes in the law since this was written. You should always consult an attorney in your own jurisdiction.)

You can always "write your own Will." The more important question to ask is, "if I write a Will myself, will it be effective and accomplish what I want to happen?" There are circumstances under California law where you can "write your own Will" and have an effective Will. Specific rules apply, and failure to comply could cause your Will to be determined to be invalid after your death. Obviously, that is not a good situation because it would be too late to correct the problem and your estate could go to someone you might not want to leave it to, or be treated as if you had no Will at all.

California has specific statutes in the Probate Code which set forth the rules by which a witnessed Will must be executed. It is possible that a Will that does not comply with those rules can still be determined to be a valid Will, whether or not witnessed, if the signature of the Testator (the person making the Will) and the material provisions are in the handwriting of the Testator. This type of Will is commonly referred to as a "Holographic Will."

If you fail to date the Will and provisions are inconsistent with another Will, it can create legal problems unless it can be established when the undated Will was signed. Also, if a Will is undated, and the Testator lacked testamentary capacity at any time during which the Will might have been executed, the Will can be found invalid unless you can establish it was executed at a time when the Testator had testamentary capacity.

Notwithstanding any of the foregoing, I think you’ll find most lawyers highly recommend you do not write out your own Will. It is not because "they don’t want to lose business". Typically, the cost of having a professionally prepared Will is fairly nominal and really shouldn’t be an issue. The big issue in making your own Will is whether you end up with a Will that will be determined to be valid and, accurately and appropriately, set forth your wishes.

While in many cases, the issues may seem straightforward to you, there can be unseen ramifications you do not take into account because you’re not aware of the potential problems. Having been in practice more than 40 years I have seen situations where the decedent’s wishes were not fulfilled because of problems with a Will that was improperly executed, or did not properly address distribution issues. These problems almost always become known after the Testator died, or death is imminent and they are no longer able to correct the problem.

Lawyers who handle Wills and Trusts can discuss your wishes with you, point out any issues that might interfere with your wishes and suggest how to address them so your Will achieves your goals. Saving money is a good idea, but I think saving money by writing your own Will is a false savings. In my practice I have found heirs sometimes spend more money dealing with problems which could have easily been avoided had the document been properly drafted.

William J. Sweeney

Attorney at Law

915 Highland Pointe Dr., Ste. 250

Roseville, CA 95678

(916) 786-2011