Archives for November 2021

What is a Holographic Will and are Holographic Wills Legal in California?

This article will explain some basic principles relating to holographic wills in California. What is a holographic will?

The definition of a holographic will found at is a holographic will is a will that is handwritten, dated and signed by the person writing the will. See https://www.courts.ca.gov/documents/Common_Words_Probate_Cases.pdf

Where can I find the law relating to holographic wills in California?

CA Prob Code § 6111 (2017) contains the black letter law relating to holographic wills. It can be found here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6111.&lawCode=PROB#:~:text=%29%206111.%20%28a%29%20A%20will%20that%20does%20not,as%20to%20the%20date%20of%20its%20execution%20and%3A

What does Section 6111 say?

(a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

(b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

(c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.

What kind of attorney can help me with a loved one’s holographic will?

An attorney who has experience in estate planning law can help you with the probate process and understanding whether a holographic will is enforceable.

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience with estate planning in California and can answer your questions relating to a holographic will.

Filed Under: General

Dividing Stock Options in a California Divorce

Stock options that are granted subject to employment can present a challenge when dividing assets in a divorce. This can occur because the options may not have vested yet or the employment upon which the options were based may have occurred before the marriage as well as during the marriage. This article will provide an overview of the logic relating to analyzing the value of the stocks and to whom that value should accrue. However, this is a complex area of the law, and we recommend that you consult with attorneys who are familiar with the valuation and division of stock options. At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

Is the stock option community property or separate property?

Establishing whether a stock option is community or separate property is important. Many facts can play into this analysis such as the date the options were issued, whether they have vested, and the requirements that were met or will be met to justify the stock award.

What is the date of separation?

The date of separation is important in assessing stock options. The date of separation is defined as the date that a complete and final break in the marriage relationship has occurred, evidence by both the following: 1) the spouse has expressed to the other spouse his or her intent to end the marriage, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage. https://codes.findlaw.com/ca/family-code/fam-sect-70.html

Are the stock options vested or unvested?

A vested option can be exercised by an employee. An unvested option can be exercised at some point in the future usually based on certain requirements (such as remaining employed). An option that has vested during the marriage is more clear cut, but that doesn’t mean that an option that hasn’t vested before the date of separation has no value to the nonemployee spouse. California courts have held that even though unvested options may have no marketable value at the time of divorce, they can still be an asset subject to division in the divorce.

What are the formulas used by courts in these cases?

There are multiple formulas that a court can use, and the court has broad discretion to apply the formula that will achieve the most equitable result. Although the formulas vary, the basic idea is that the longer the time between the date of separation and the date the options vest, the smaller the overall percentage of options that will be considered community property. For example, consider a divorce where the options vest just a day after the separation. Now consider a divorce where the options vest years after the separation. In general, equity would suggest that the nonemployee spouse should be entitled to a greater share of the stock options that vest just a day after separation than those that are years away from having market value.

You can a couple cases that are examples of these formulas here: https://scocal.stanford.edu/opinion/re-marriage-brown-27941

https://www.leagle.com/decision/200715366calrptr3d871148.xml

What is the best way to position yourself in a divorce relating to stock options?

Even though nonvested stock options may have no present market value, you may want to retain an interest in the shares and potential profits. This area of family law can be very complex, and possibly the best way to position yourself well relating to stock options is to obtain advice from an experienced divorce attorney who can analyze and comment on your specific situation.

Conclusion

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

Filed Under: Divorce Advice, Divorce Attorney

The Evolution of Trust and Estate Disputes and Selecting the Right Mediator in California

Some would assert that the pandemic and shifting landscape around wealth transfers is fueling increased trust and estate disputes. This article will summarize a podcast with an interview of the Honorable Glen Reiser, a judge who serves as educational trainer for all trust and probate judges throughout California. He spent more than 20 years with the Superior Court in Ventura County, California, and before that, more than two decades as a civil litigator. The full transcript of the podcast can be found here: https://www.jdsupra.com/legalnews/podcast-jams-neutrals-on-the-evolution-5378200/

Contested cases have risen dramatically over the last five years, and particularly recently due to COVID.

With Covid, we are seeing a high number of unexpected deaths.

There is an increase in the will disputes, with issues relating to blended families and sibling rivalry.

More people are dying without a will due to the unexpected nature of Covid.

In the “old days” more wealth was earned individually, but now we are seeing that more frequently, wealth is transferred through family deaths and trust and estate matters, so that seems to be where large amounts of capital are exchanged. Contests in that area have risen dramatically.

The Court system is increasingly encouraging mediation over trial.

With Covid, we are seeing a high number of unexpected deaths.

There is an increase in the will disputes, with issues relating to blended families and sibling rivalry.

More people are dying without a will due to the unexpected nature of Covid.

In the “old days” more wealth was earned individually, but now we are seeing that more frequently, wealth is transferred through family deaths and trust and estate matters, so that seems to be where large amounts of capital are exchanged. Contests in that area have risen dramatically.

Mediation has advantages the court cannot offer.

Mediation can save time and money.

Attorneys can work with the mediator and other parties to craft often creative solutions.

Mediation can allow for more customized solutions, since they can be tailored specifically to the parties.

Capacity tends to be a significant issue and cases require a lot of court resources.

Will and trust contests tend to be judge decided not jury
The burden on judges for these types of cases is large because the cases require trial and long opinions, so judges generally would like to encourage settlement
The testamentary instrument is either a trust or a will. That document in most cases, not always, was drafted by an estate planner or a lawyer who dabbles in estate planning. Thorough preparation would be to interview the estate planner to see what their recollection is, even if it relates to issues such as capacity, undue influence, document interpretation or intent.
With capacity cases, a geriatric psychiatrist or PhD psychologist with expertise in geriatrics should be consulted.

The role of undue influence in estate disputes.

In our mobile society, many family members move away, but someone stays to help take care of the elderly person. So, when the elderly person changes their instrument to benefit the person taking care of them, then that’s a common circumstance where undue influence will be alleged.

Undue influence is a particularly fact specific factor, and questions that should be asked are: Is the person isolated? Are they competent to write emails? Who is taking them to the lawyer’s office? Whose lawyer is it? Who is sitting in on meetings with an estate planner? These issues and more are the type of fact-specific inquiry needed on these cases.

Tips for successful mediation of estate disputes.

Preparation is key.

Consider spending money on the science up front. There is a lot of development in the science of cognitive deficits with scientific evidence that can be relevant to undue influence and capacity, and it may be that spending money on the science up front will make the negotiating position stronger.

Find a mediator who will read everything, understand the positions and get involved.

Avoid selecting a mediator who is just a “carrier pigeon” to take the offers back and forth. Look for a mediator who has the skill set to add to the discussion.

Conclusion

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in estate planning and litigating estate disputes. Contact us today!

Filed Under: Estate Planning, Estates

5 Assets Not to Forget in a California Divorce

There are a few categories of assets that are sometimes missed by couples getting a divorce. This article will discuss five important asset classes to remember in a California divorce so that the division of assets is fair, accurate and equitable. At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

Bitcoin, Ethereum, or other Cryptocurrency or alternative currency.

With the popularity of investing in cryptocurrency greatly increasing, this is one important asset class to divide in a divorce. Crypto assets can be missed because they can be traded through Venmo, or various platforms like Coinbase that the other spouse may not be aware of. The timing on when it is purchased is important, as well as the issue of whether there were any gains made during the marriage.

Stock options.

Stock options that are granted subject to employment can present a challenge when dividing assets in a divorce. This can occur because the options may not have vested yet or the employment upon which the options were based may have occurred before the marriage as well as during the marriage. Even though nonvested stock options may have no present market value, you may want to retain an interest in the shares and potential profits. This area of family law can be very complex, and possibly the best way to position yourself well relating to stock options is to obtain advice from an experienced divorce attorney who can analyze and comment on your specific situation.

Stimulus money.

If you received stimulus money during the course of your marriage, then this is an asset that can be split as part of the divorce settlement.

Pension plans.

Some employers, particularly the state or federal government, still offer pension plans, and if these were earned during the marriage, it’s an important source of income not to forget in a divorce settlement.

Military Benefits.

A service member’s military pension in an extremely valuable asset and can be divided just like any asset. It is important to include military pensions and other military benefits in a division of assets.

Conclusion

Filed Under: General Legal Advice, Vacaville Attorney, Vacaville Lawyer