Estate Planning Practice Blog

Domestic Violence Hotlines and Walk-In Centers near Long Beach.

If domestic violence is an issue in your family life, please seek help. There are many resources available to you.

You can also consult with an attorney who handles family law matters for advice too. Please note that if you retain an attorney to handle your domestic violence situation, you will have to pay attorney fees as well.

Domestic Violence Hotlines:
National Hotline 800-978-3600
Human Options 949-854-3554
Interval House 714-891-8121
Laura's House 949-498-1511
WTLC 714-992-1931

Domestic Violence Walk-In Centers:
Human Options 714-435-9992
Laura's House 949-240-0363
WTLC 714-992-1939 x105
Interval House 562-594-9492

You can also call the Legal Aid Society at 800-834-5200 or the Women's Law Center at 714-667-1038 for assistance.

What Role Does an Attorney Have in Estate Planning?

An interesting discussion came up not too long ago about what role does an attorney have in estate planning for a client. Should an attorney simply prepare documents based on the client's wishes? Or should an attorney counsel the client on the potential ramifications of the client's wishes?  In other words, is an attorney merely a scrivener or a counselor?

Obviously, an attorney's role is to prepare estate planning documents in accordance to the client's wishes. Also, obvious, an attorney's role is to prepare estate planning documents that can be enforced according to California law. If the document contains unenforceable provisions then the attorney has not done his or her role properly.

But where do you draw the line? Should the attorney strongly counsel the client not to omit a child from a Trust? Should the client be told of the ramifications for purposefully omitting a child? Does the client need to know of the possible ramifications for a legal contest?  I say yes.

In my mind, the attorney's role is clear and multi-faceted. Below is a following of the some of the roles an estate planning attorney will take on when working with their clients:

• Prepare the documents in accordance to the client's wishes and in accordance to the laws.
• Counsel the client on potential legal ramifications of their documents.
• Advise the client of other scenarios or avenues that will accomplish their objectives.
• Assist the client with funding their trust or including new assets into their estate plan.

Can you think of other roles?

Common Deeds in Recording.

A deed is a document that transfers title of a piece of a real estate. Here are some definitions of commonly used deeds in California.

Deed: Written instrument which, when properly executed and delivered, transfers title to real estate.

Deed of Reconveyance: An instrument used to transfer title from a trustee to the equitable owner of real estate, when title is held as collateral security for a debt. Most commonly used upon payment in full of a trust deed. In other words, if you have a mortgage on your home and you have paid off the mortgage, the mortgage lender will execute a Deed of Reconveyance to you as proof that you have paid off the mortgage in full.

Grant Deed: Form of deed, common in the state of California, which contains implied warranties to the effect that the grantor has not previously conveyed or encumbered the property.

Quitclaim Deed: A deed used to transfer any interest in real property that the grantor may have. It contains no warranties of any kind.

Trust Deed (Deed of Trust): Written instrument by which title to land is transferred to a trustee as security for a debt or other obligation. In other words, when you have a mortgage on your home, the mortgage lender will record a Deed of Trust as proof that they have lent you money with your home as secured collateral.

Trustee's Deed: Deed given by the trustee when property is sold under the power of sale in a trust deed.

A Little Rosy Friday Humor.

I had a rose named after me and I was very flattered.

But I was not pleased to read the description in the catalog: "No good in a bed, but fine against a wall."

~ Eleanor Roosevelt

More on Pets, Free Kit for Estate Planning.

I recently wrote a quickie post on estate planning for pets not too long ago. This recently came to my attention: The Humane Society of the United States is offering a free kit on this very topic called "Providing for Your Pet’s Future Without You." If you are interested, here's the link!

(Ok, maybe I need a subcategory for estate planning for pets now.)

Is There a Will in a Safe Deposit Box?

It is common for a Will or Trust to be stored in a safe deposit box. But what happens when the original box owner passes away? And there is no other joint owner of the box? Who can retrieve the Will or Trust? Or even see if there's a Will or Trust in the box?

Banks are notorious for restricting access to safe deposit boxes when the original box owner has died. California law addresses this issue by allowing a person in possession of a key to a safe deposit box to see if the box contained estate planning documents.

California Probate Code Section 331 authorizes a person who has the key to a safe deposit box of a deceased person to have access to the box, even before any action has been taken with the probate court.

The financial institution shall first obtain proof of the decedent’s death and reasonable proof of the identity of the person seeking access.

The person may then:
1. open the box (under the supervision of an officer or employee of the financial institution),
2. make an inventory of the contents,
3. remove instructions for disposition of the decedent’s remains, and
4. after copies have been made and placed in the box, remove wills and trust instruments.

Except for the disposition instructions, wills and trust instruments, no other contents shall be removed under these provisions. The person shall deliver all wills found in the box to the clerk of the superior court, and mail or deliver a copy to the person named as executor.

Estate Tax Update.

Repeal of estate taxes, compromises and keeping the stepped-up basis... lots of discussion going on about these topics in Congress. What the landscape will be like for federal estate taxes after 2010 has yet to be settled. For some interesting commentary to keep you up to date on these issues, read Clark Allison's excellent post on this topic. Joel Schoenmeyer also weighed in on this issue not too long ago.  More to come.

Dorna, Our Favorite Intern, Posts Her Thoughts.

Last summer we were very fortunate to have Dorna join us for our summer internship program. The program is exceedingly simple:  one intern for the summer.  This summer we asked her back and here is her guest post... I hope you enjoy reading it. She is extremely smart and an asset to the firm.

Eleven years ago, on the third grade playground, I convinced a rather plump redheaded boy not to tattle on me for saying the word “butt.” The word, I explained to him, could be easily confused with the prepositional homonym “but” and keeping quiet would only save him from further humiliation by the grammar-obsessed Mrs. Johnson. I appeased him, kept myself out of trouble, and made a best friend—who often came to me for homework help. Ever since that day, I have wanted to work towards a career in law. Obviously, one elementary school encounter is not enough upon which to base an entire future.

 When I got an internship at Sawday and Drake last summer, I knew it was a way for me to prove to myself that this was destiny, not coincidence. Not only would I get a preview of the field I aspire to become a part of, but I would also become acquainted with which type of law I am most interested in. Last summer, I was a naïve high school graduate, eager to begin her first year at NYU who was spending two days a week interning. Evidently, I was sold: sold to the idea of spending my summer learning about what I will do in 7 years, sold to three years of intense schooling post-college graduation, and sold to the 80 hour work-weeks in Corporate America prior to setting up a private firm or becoming a partner. And that is why, this year, I am back—with a year’s worth of knowledge and stories—to work in the offices of Sawday and Drake.

 My biggest fear before starting was that I would be the given the classic job of “intern.” Jennifer would have a frenzied meeting with a client because I would forget that she drinks decaf and Michelle’s wedding invitations would go out to everyone except the people actually invited. With great relief, I found that I was given tasks that represent the true purpose of an intern and that they trusted me with “real work.” While I answer the phone and fax documents, I also get to write letters to clients, research legal issues in probate matters, and my favorite yet, write declarations. I am particularly fond of family law because of the obscure stories often involved. I form my own opinions of the case as I read through the angry e-mails between husbands and wives, trying to twist it into a declaration that will make one parent the “bad guy.” Often times, I think the clients themselves could do a better job at lying; but as long as they say they are telling the truth, their words are taken as words of truth and virtue.

 I’ve been working here for a month now, and I stay until lunchtime. After lunch, I work for another attorney down the hall, to whom Jenni and Michelle referred me. I should probably wrap this up since I start there in precisely 11 minutes and the workers down at the Red House Café take over 15 minutes to make a hot dog.

The Eager and Growing Intern,

Dorna Moini

What To Do With Undeposited Checks After Someone Dies.

It is rather common to come across checks that were issued right around when a loved one passes away. The question is what to do with those checks.

If probate will be opened, then you will need to inventory those checks and deposit them into the estate checking account as part of probate. This can be done after the court has ordered probate and appointed a personal representative of the estate. Checks do have an expiration date so you may have to ask the issuer of the checks to reissue the checks after probate has been formally opened.

Another option is to deposit the checks directly into the decedent's existing checking account. Let's say you have a check for a small amount ($100) and the bank is unaware that the decedent has passed away. You could write the words "for deposit only" on the back of the check with the account number and either hand it to the teller at the bank or drop it in an express deposit box. If the checking account has a transfer on death beneficiary then all of the funds in the checking account will go to the named beneficiary.

If the estate will be handled by a Trust, you will want to open an estate checking account through the Trust and deposit it there.  The Trust will instruct who the estate beneficiaries are.

If there is no Trust and no probate will be opened, you will still have to open an estate account. You can do this via a small estate affidavit as allowed by California Probate Code Section 13100, et. seq. as carefully described in this pamphlet by Los Angeles County Superior Court.

In reality, it is best to wait a while before informing the banks where your loved ones had accounts that he or she has passed away. Most banks and other financial institutions will block any further account activity even if it is a joint tenancy account once they learn that an account holder has died.  Note that depositing a check in a joint tenancy account is really depositing it into the surviving joint tenant's account. This is because the surviving joint tenant now owns the account.

Each situation is really fact dependent so be sure to consult with an attorney if you have questions.

Transferring Ownership of a Decedent's Vehicle.

Someone dies. He or she had a car. A car nice enough to keep. You are the only heir. The estate doesn't need probate for whatever reason.

First, determine if there is an existing note on the car. If there is a note, you will want to continue to keep paying the note until you can transfer title into your name.

Second, make sure there is insurance on the car.

Third, complete this form at the DMV called Affidavit for Transfer without Probate, California Titled Vehicles or Vessels only. You will want to go to your local DMV to file this form and ensure that title will now be in your name.

This form is part of the small estate affidavit procedure permitted by California Probate Code Section 13100, et. seq. When you complete and sign the Affidavit, you are stating under the penalty of perjury that you are the rightful heir, the estate is less than $100k, probate is/will not be opened and at least 40 days have elapsed since decedent died.

Last steps, call the car note holder and see if you can continue to pay on the note or if you need to do something. Each lender is different. Try to be nice, eh? And then call the insurance company again to cancel the decedent's insurance policy and re-insure the car under your own insurance policy.