Estate Planning Practice Blog

More About Cremations in California.

Yesterday, I posted about a family arguing over cremation or burial of their father's remains.

Did you know that the state of California has a Cemetery and Funeral Bureau? Their website is very informative about all aspects of funeral, burial and cremation.

Cremations in California must be authorized by a loved one with authority to do so. But did you know that you can pre-authorize your own cremation? To do so,  you will need to complete a Declaration for Disposition of Cremated Remains form.

Anyhow, I found this interesting... in California, you may choose any of the following methods of disposition of cremated remains:

• Placement in a columbarium or mausoleum
• Burial in a plot in a cemetery
• Retention at a residence
• Storage in a house of worship or religious shrine
• Scattering in areas of the state where no local prohibition exists and with written permission of the property owner or governing agency
• Scattering in a cemetery scattering garden; or
• Scattering at sea, at least 500 yards from shore (this also includes inland navigable waters, except for lakes and streams)

Further, cremated remains may not be transported without a permit from the county health department and they may not be disposed of in refuse.

Information excerpted from the California Cemetery and Funeral Bureau website under Cremation.

Can You Sue Your Siblings for Cremating Your Parents?

I got this call yesterday. Someone's father passed away. He had 8 children. Half the kids say that Dad wanted to be buried. The other half wanted to cremate him.

My first question, did Dad have an Advance Health Care Directive?

"No," says the distraught son.

Well, of course not, otherwise I would not have gotten the phone call.

Anyway, did you know that to cremate someone's remains you need to complete a cremation authorization for the company handling the cremation? And this authorization asks you to indicate where you are getting your authority for cremation? Advance Health Care Directive? Surviving Spouse? Majority vote of children?

Seriously.

At least 5 of the 8 kids need to authorize cremation before proceeding with the services.

Interesting, eh?

So, folks, get your Advance Health Care Directives in place.  Avoid this mess.

Here's a link to complete one free -- no need to get it notarized, you have two witnesses sign it instead: Office of the California Attorney General.

Living Trusts for $400!

I see this ad in my local newspaper all the time. Living Trusts and then a ridiculously low price... like $400. Be careful. This is for a Living Trust.  Period.

That's it.

Nothing else.

No Certification of Trust, no pour-over Will, no Durable Power of Attorney, no Advance Health Care Directive, no deed transfer, no review of your assets, no binder, no notarization of all documents.

They don't even copy the signed/executed documents for their own files in case you misplace the originals. I had to call one of those places two weeks ago to see if they had a copy of a certain document that my client was sure was prepared by that office. The other documents were prepared by that office, but they didn't keep copies.

Furthermore, if you only have a Living Trust prepared, do not be fooled that you have completed your estate planning.

A Durable Power of Attorney and Advance Health Care Directives are very important. These two documents allow your loved ones to help manage your affairs along with what's in your Living Trust if are not aging well and find that you need assistance.

Per Stirpes Defined.

Stan Rule who practices law in British Columbia, Canada has written an excellent post on per stirpes as a legal term. The term is often used in Wills and related probate matters.

Stan was also in San Diego, California recently as evidenced by his post on the San Diego courthouse located in Old Town.

How to Avoid Probate When You Own Your Home...

If you own a home, you may be wondering how to avoid probate.

Probate is a court procedure to determine who your heirs are at the time you pass away and transfer title of your assets to these heirs. It takes usually a year, if not more to probate your assets.

If you have a Will, your estate will still get probated.  This is because a Will must be "proved." Proving a Will in plain English means to verify that it was indeed your last Will and that you had capacity when it was prepared.  Suffice to say, the laws indicate that forgery of Wills is more commonplace than we think.

There are two major ways to prevent probate of your home:

1. Holding title of your home in your Living Trust, or
2. Holding title of your home in Joint Tenancy with Right of Survivorship with your heir

If you own your home in Joint Tenancy, then you are giving up control of your home. The person who is on title with you actually owns your home with you. You will need that person's consent to sell or refinance your home. And when you sell, the person is entitled to half of the proceeds of the sale. Further, the person can force you to sell your home through a court process called a partition lawsuit. And, moreover, your home may be subject to this person's creditors.

Sound scary?

I agree.

A Living Trust is a terrific way to maintain control of your home and still decide who should get your home when you pass away.  See your attorney for more information about Living Trusts.

A Living Trust May Avoid a Conservatorship.

A Living Trust can be used to hold title to your real property. Also, in a Living Trust, you appoint a Successor Trustee to manage your Living Trust in the event you are unable to do so by reason of death, incapacity or personal choice.

If you become incapacitated, your Successor Trustee will be able to privately manage your assets in your Living Trust in accordance with your instructions you have provided in the Living Trust.

Thus, a properly prepared and funded Trust can enable you to avoid a conservatorship proceeding over your estate. Compared with the cost of a conservatorship proceeding, a Trust can be very attractive.

Sounds so simple, you know.

A conservatorship is a guardian over an adult. It is very costly and time-consuming. It can also be very scary to the individual placed in the conservatorship. You become a conservatee and lose control over your assets.

But if you have the your largest asset, your home, in your Living Trust then it can be managed by your chosen loved one. Also, if you have a Durable Power of Attorney in Place and Advance Health Care Directive -- all potential reasons to obtain a conservatorship will have been addressed.

Estate planning is truly important.

Cross References:

For more information about conservatorships, read the Guardians for Profit series reported by the Los Angeles Times.

Organ Donation Choices and April is National Donate Life Month.

Every month celebrates something special. April is National Donate Life month.

[April is also Financial Literacy for Youth month and National Poetry month. Okay, okay, I am not trying to belittle these observational months. I will stop googling special months. April is also National Zoo and Aquarium month. Sheesh. Back to the topic at hand.]

Advance Health Care Directives have essentially two purposes:

1. Instruct who should make health care choices in the event you are unable to do so, and
2. Solidify your end of life choices including your permission to donate your organs if you so choose.

When you give a blanket permission to donate your organs, you are also giving permission to donate your body tissue as well. For example, a donation of body tissue could be some skin from your backside and your corneas.

The neat thing about the Advance Health Care Directive is that, while it is a legally binding document, it is a document that you can draft to your specific wishes.

You can write down what your specific wishes are about organ donation.

My clients do just that. Of course, some opt for a blanket organ donation authorization and some opt for no organ donation at all. But those in between often state that they wish to have only major organs donated, their eyes only or that organ donation be used only for transplant purposes.

This is my job. To listen to my clients and ensure that their documents including the Advance Health Care Directive includes their wishes. Your Advance Health Care Directive is a very flexible legal document.

For more information, go to donatelife.net.

How to Work With Your Divorce Attorney

The Fort-Wayne.com has articles from The News-Sentinel online. Read this neat Q&A column "Flying Solo" that discusses how to work with your divorce attorney.

The advice applies to almost any type of attorney. Here's the question to whet your appetite to read the rest of the article:

Q: My wife and I are contemplating divorce. I have gotten all kinds of advice from family and friends about dealing with my wife and divorce lawyer, but all the advice has been different. I have found tips on the Internet about how to deal with some of the problems that face me, but not about how to deal with a divorce lawyer. Are there any secrets?

A: Dealing with divorce and divorce lawyers is not much different than taking a trip without first plotting out the route. If you go to a matrimonial lawyer without specific objectives or goals in mind, and think he or she can fix it for you, you'll be disappointed. Given a specific set of facts, lawyers are trained to apply the law and advise clients about ways to attain specific goals - or at least some of them.

Filing Taxes for Those Who Have Passed Away.

The executor or personal representative of the decedent's estate is responsible for ensuring that proper tax returns are filed.  These tax returns may include the final income tax return of the decedent and any returns not filed for preceding years, the income tax return for the estate and the estate tax return. [Sounds like blah, blah, blah, eh?]

Needless to say, taxes are due on April 17, 2006 for 2005 returns. If you need to file an extension, please do. Handling this aspect of a decedent's estate can be much more time-consuming than normal.

For more information, please consult with your attorney, tax accountant or the IRS. The IRS has more information on its website under Tax Topic -- 356 Decedents.

Do Not Call List for the Departed.

Camie Pickett, who practices law in both Arizona and California, posted a useful link to the Do Not Call List for the deceased in her blog post on March 11.

To go directly to the Direct Marketing Association's website for more information about the Do Not Call List for the deceased, please click here.