Probate Code 6124: What is it and How could it affect you?

The probate code includes many provisions that are not widely known by non-practitioners. There are many situations that occur when people pass away, and sometimes situations arise that the legislature feels the need to address so that if a particular situation arises again, it will be treated the same way every time into the future.

One of these provisions is probate code 6124. This provision says that an individual is presumed to have destroyed her will if it cannot be found upon her death. This presumption affects the burden of producing evidence if there is a will contest. 

Imagine a mom dies with two children. Both children know that their mother executed a will 5 years ago, but neither has the original. Because there is no will, mom’s estate will be administered as though it was intestate (no will) even though both children know she had drafted the will. If there is a dispute between the children about the eventual disposition of the estate, then the child asserting that the will was NOT destroyed has the burden of proof. The code is forcing the moving party to prove a negative. 

Does this make sense? It does if you think about it a bit. What could have happened, where is the will? There are two options here: 1. The will is lost, or 2. The will is destroyed. Probate Code 6124 does not preclude either result, all it says is that the presumption is that it was destroyed.

Destroying a will is one of two ways of revoking a will, with the other being by executing a new will. Because there is no will depository or registration, there is no way to confirm the destruction of a will unless pieces of it are found afterward. 

If the child wanting to use the missing will can prove that it was not destroyed, such as by finding it, then the burden will be overcome.

Wine is Serious Business

Tasting, pairing, appreciating, collecting; your individual level of interest may vary, but wine is ubiquitous. Whether you have a rack, cabinet, or cellar; those bottles have value, and they should be addressed in your Estate Plan.

Now you may ask, “do I really need to make some wine provision in my will or trust?” The answer is yes, but how extensive the provision really depends on what you want to happen to the wine.

Avid and serious collectors alike put time and effort into their bottles. If you want to ensure the same effort and care is taken by your executor or trustee, it makes sense to let him/her know how you would prefer for the collection to be treated.

Wine is considered personal property. Personal property is an afterthought in many Estate Plans, but that is a mistake. Personal property, especially in the eyes of children and other family members, can and often is the most coveted property because of its sentimental value. Wine is no exception, but some wine may also have monetary value too. 

The most common convention is to leave all personal property to a spouse, and then to children in the alternative. That may create many issues, where not everyone is married or has children. More direct to our discussion here though, what if your children aren’t wine drinkers? They may not value it at all, but your neighbors (who you may or may not have shared several bottles with over the years) would.

If the collection includes valuable bottles that need proper appraisal and valuation, it makes sense to include that on the personal property memorandum to ensure your executor will know.

Large collectors, cellar-types, may also have other considerations. If the cellar is built into your home, what will happen to the collection when the house is sold, rented, or donated to charity? Does the recipient of the collection have the facilities to store it? Does the recipient even like wine? As with any asset, as folks get older, they will often start gifting items to friends and family to alleviate the stress on an executor or trustee. 

At Tresp Law, our Trusts all include language that allows for the client to create a personal property memorandum to address distribution of personal property. This gives the client the flexibility to update their wishes as often as they like without the need to amend the Trust every time. 

Attorney Vs. DIY Online: How One Person Can Make All The Difference

The expense of consulting with an Estate Planning will certainly be more than do-it-yourself online document preparation services. No question that is true. For Estate Planning, the problems come later; and those problems will inevitably be much more expensive for your loved ones. Families are different, circumstances are unique, and life events change. All of these can be perilous for Estate/Trust Administration and engaging an excellent attorney in the preparation of your Estate Plan will minimize the risk of your plans going awry after you have passed.

The central goal of basic estate planning is to avoid the need for a court-supervised probate administration.

Time consuming, expensive, and complicated, the probate court process is entirely unnecessary if you are proactive. This means avoiding all of the related filing fees, executor fees, attorney fees, and year or longer administration required to simply distribute your estate to your loved ones or charities (the “beneficiaries” of your estate).

Like any legal representation, the main purchase is advice. For an Estate Planning attorney, that advice is crucial to ensure your wishes are followed and to avoid the probate process. Even simple estates can save thousands of dollars later by ensuring their documents are correct and current.

Take a home as an example. For even a modest estate, where the only asset is a home valued at $500,000 (below the median home value in San Diego County), passes through probate, the executor and attorney fees set statute by the California legislature would be $13,000 each under the current probate code. That is a total of $26,000 of fees that directly reduce what your beneficiaries will receive, and that does not include court costs and expenses than can be in the thousands. And errors in your estate planning documents can lead to litigation that may costs tens of thousands of dollars on top of the statutory costs.
 

Low-cost options such as websites or quick turnaround firms may have been created by attorneys or overseen by attorneys, but it is unlikely an attorney actually sitting down with you to discuss your family, assets, and wishes. This is the weakness in their mode, and the only ones harmed will be you and your loved ones, which is why meeting with an experienced estate planning attorney is always the best policy.

Tresp Law, APC offers free consultations for all Estate Planning clients. We can let you know what plan works best for you and address any particular concerns you may have about the process and what it entails. We also handle Trust Administrations, Probate Administrations, and Trust and Probate Litigation. This is advantageous to clients because our experience litigating issues after someone passes away enables us to plan better to avoid litigation. We know how well-drafted documents stand up to court challenges.

Set up a consultation today to speak with a real attorney about your real situation. Leave the online business to those who think of estate planning as only an expense, and not an investment. 

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