More Ammo for Estate Planners: Estate of Schellenbarger

In California, if you die without an estate plan (or "intestate" in legal jargon), California law determines who gets what, no matter how unfair it may be. That's what the Court of Appeals for the Sixth Appellate District (Los Angeles) has held in Estate of Schellenbarger.

Mom and Dad were married briefly in the early 1960s. They had a daughter Michele. In 1962, when Mom was pregnant with their son Lesley, Dad left and moved to Michigan. Lesley was born in 1963. Mom and Dad got divorced in 1964. Dad never saw his son Lesley.

Lesley died intestate in 2004. He had no wife, domestic partner, children, or issue of deceased children. Under California law, his estate would go to his parents if living. The court appointed Mom administrator of Lesley's estate. She also petitioned the court to deny Dad from taking any of Lesley's estate as an intestate heir. The trial court denied the peitition, and the court of appeal affirmed. "'[C]an a bad guy luck into an inheritance, and is there an equitable way to avoid it?' [the trial court] answered the second question with a 'no.'" The court of appeals observed that there is no provision in the intestate succession law to deny a parent from inheriting because they were not present as a parent. "We accordingly reject the argument that the failure to pay child support or the lack of a meaningful parent-child relationship affects Clifford's rights as an intestate heir. If that were the rule, it would rewrite the laws of succession."

Estate planning attorneys often talk about how you lose control over your estate if you do not have an estate plan. Here it is in black and white. The only way to avoid your estate from falling into the wrong hands is to have an estate plan, whether it's a will or a trust.

And don't think you can put it off because you're relatively young. Lesley died at age 41. A major reason for having an estate plan is because you cannot plan with any accuracy when you might die.

So, if you don't have an estate plan, or if you do have a plan that's out of date, make a resolution to take care of it in 2009.