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The Man Without a Will

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. However, these rules can lead to unintended results. Estate of Garrett (2008) 159 Cal. App. 4th 851 is one such case.

William Garrett married Gwendolyn in 1975. Each had a child from a prior marriage. They separated in 1976. Gwendolyn moved out of state (where she continued to live) and filed suit to dissolve the marriage in 1979. However, no judgment was ever entered and the case was eventually dismissed. 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 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 entitled to a one-half interest in the Decedent’s separate property.

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. If William had a trust, he could have left everything to his daughter AND avoided probate!

A will is a chance to make a gift to a person or organization; 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. A will or a trust is an inexpensive tool to protect your loved ones.