From the desk of San Diego Estate Attorney, Kristina Hess Haymes
Estate planning dilemma of the day: What do you do if your spouse will not, absolutely refuses to do any estate planning? You own a home, you have children, you know that you know that you need to get this done! You want your loved ones to avoid the long drawn out, expensive probate court process.
You do not want to give Uncle Sam over one-half of every dollar over $1 million if the estate tax credit (death tax) goes to $1 million as it is currently scheduled to on January 1, 2013.
California is a community property state.
If you attempted to do a living trust and you had jointly owned property or community property, and your spouse refuses to plan, your plan might not work.
Even if your spouse refuses to plan, if you can get him or her to CONSENT to what you would like to do with your half of the assets IN WRITING, you may be able to at least take care of your piece. However, each member of the couple is deemed to own an undivided 50% interest in each asset, so consent is key.
Here is one of the relevant Probate Code sections…
The general rule concerning spousal consent for nonprobate transfers is set forth in Prob C §5020, which states that:
[a] provision for a nonprobate transfer of community property on death executed by a married person without the written consent of the person’s spouse (1) is not effective as to the nonconsenting spouse’s interest in the property and (2) does not affect the nonconsenting spouse’s disposition on death of the nonconsenting spouse’s interest in the community property by will, intestate succession, or nonprobate transfer.
The best thing to do is to see if you and your spouse can come to an agreement. Sometimes, all the other person needs is some good old fashioned EDUCATION about the PARADE of HORRIBLES — all the bad things that result from failing to PLAN. e.g. paying avoidable probate costs — thousands and thousands of dollars, potentially paying avoidable estate taxes, thousands and thousands of dollars, time delay, public court process, etc. Children getting assets OUTRIGHT at 18, and so on.
You get the idea.
If you fail to plan, you plan to FAIL…
Please consult with a lawyer in your area. This is not something you want to do yourself.
The above is not intended to provide you with legal advice. I am not your lawyer and you should consult with one in your area before attempting any estate planning with or without spousal consent.
Create Legacies that Last and get that spouse on board!