Encino Law | Encino No Will - No Way: Reasons For An Estate Plan | | Asher Levin, Esq. |

Reasons for an Estate Plan

The Man Without a Will: When No Plan Is the Wrong Plan

Many people believe that estate planning is unnecessary for them. After all, California law provides specific rules for family succession when there is no will or trust (Probate Code Sections 6400, et. seq.). California law also provides rules for appointment of Administrators to handle the probate of an estate where there is no will.

The Estate of Garrett (2008) 159 Cal. App. 4^th 851 is an example of an estate where the decedent’s intentions appear to have been thwarted because he did not have a will. Decedent William Garrett married Gwendolyn Garrett in 1975. Each had a child before marrying. They separated in 1976, Gwendolyn moved out of state (where she continued to live) and filed suit to dissolve the marriage in 1979 but no judgment was ever entered and the case was eventually dismissed - they were still officially married. In 2001, William purchased a new house and paid Gwendolyn $15,000 to "sign off" on the purchase so that he could take title as his separate property.

William died in 2006. William’s daughter filed a petition to be appointed Administrator of his probate estate. Gwendolyn filed a petition nominating her son to be appointed Administrator. The court appointed Gwendolyn’s son based upon the Gwendolyn’s right, as surviving spouse (despite 28 years of separation and the filing of a divorce action) to appoint the Administrator.

In addition, although the court of appeal decision does not discuss it, Gwendolyn was be entitled to a one-half interest in the Decedent’s separate property. (Probate Code Section 6401(c)(2)(A)).

If William had written a will, he could have left everything to his own daughter and nothing to the wife who had left him 28 years before.

Of course, this is not the only reason for a will or a living trust, but one of many reasons. A few other examples: to make a gift to a person or organization that would not inherit without a will or trust; to disinherit an heir; to name someone that you trust to administer your estate; to name a guardian for your children; to name a trustee to protect your assets for your beneficiaries; to avoid probate or minimize taxes.

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