Estate Planning Practice Blog

Deathbed Signings.

Our firm attorneys routinely make visits to where the client is located to execute their estate planning documents. We bring a notary to notarize the documents and to act as a witness during these signings.

We prefer not to make these visits because it almost always means that the client is suffering from an illness, is terminal or otherwise not able to make it to one of our offices. In other words, it means we are handling an estate plan in a precarious time and situation. The timing because the client is dying or aging rapidly... the situation because the estate plan could be contested for lack of capacity or undue influence.

But we do make these visits.

Things to be aware of:

• When we visit the clients, we reserve the right to leave without executing the estate plan if we feel the client has no capacity or is being unduly influenced.
  
• It costs more. You have to pay for travel time and related costs. And possibly even a rush fee.
  
• It's harder to understand the nature of your own estate plan when you are not feeling well.
  
• And it's a final realization that your estate planning should have been taken care of earlier. Instead of focusing on your health, well-being and comfort, you are focusing on stressful matters like estate planning in a very precarious time and situation.

Think about getting your affairs in order now while life and the living is good. You won't regret it.

Beneficiary Designations.

Having properly designated beneficiaries is a crucial component of estate planning.

Many financial products (for example, life insurance policies, bank accounts, retirement accounts, savings bonds and annuities) allow you to designate a payable on death beneficiary,which, in most instances, will avoid probate of that particular asset upon your death. This passing to your designated beneficiary after death is called a nonprobate transfer.

It is a good idea to review at least annually your beneficiary designations for your financial accounts and ensure that they are in line with your estate plan. Be sure to also tell your estate planning attorney what financial products you have and who you have designated as your beneficiary as it becomes an important component of your estate plan. There can be unintended consequences for making certain beneficiary designations in certain financial products.

Also, if you are divorced and have named your former spouse as as beneficiary, California Probate Code Section 5600 states that any beneficiary designation involving a former spouse made before or during the marriage may be subject to automatic revocation to that former spouse once the divorce is finalized. There are exceptions. If you wish to leave a certain asset to your former spouse, you will need to make this clear after the date of dissolution. Don't rely on this code provision after a divorce -- review all your beneficiary designations and update them especially after a divorce or death in your family.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Estate Planning & Organization Go Hand in Hand.

Don't you love it when you walk into stores this time of the year and you see stacks upon stacks of clear plastic containers and other paraphernalia for getting your house and life organized for the new year? Whether or not you love it, it is a good reminder that being organized and going through your things every year helps with clutter and creating a clean slate for the new year.

With that in mind, Leanna Hamill, an estate planning attorney from Massachusetts, posted about a NY Times article and the importance of keeping your estate planning documents organized and at the ready. Read her post here.

Two Questions from a Reader.

A reader wrote last year: 

"Two questions came to mind that maybe your other readers (and perhaps future clients) might be wondering.  First, if an unmarried couple holds title to a home in Joint Tenancy, is there really a need to add the property to the trust since title would pass outside of probate to the survivor anyway?  Second, do settlors/grantors have to record their living trusts in California in order to effectuate it?  (E.g., do banks, etc. want to see that the trust has been recorded with the County recorder?)"

While there are easy answers to these kinds of questions, it really depends as legal advice regarding estate planning must be specific to that client's needs, desires and situation especially as it relates to the first question.

The second question, to answer it first, a living trust does not need to be recorded to be effective in California. It can be recorded. Reasons for recording a trust should be explored with your attorney as recording a trust makes it a public record.

The best answer to the first question is that while an unmarried couple may acquire property as joint tenants with right of survivorship, it only delays probate of the property upon the death of the second joint tenant after the first joint tenant has died. Also, sometimes a couple may decide that tenants in common ownership is preferred. All the more reason to consult with your attorney, tax advisor and others to determine the best way to hold title to property and how it affects estate planning decisions.

Thanks for the questions. We will try our best to answer them when asked to do so in this blog.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Don't Disinherit By Accident.

A common mistake in drafting estate planning documents are provisions that disinherit children by accident. Remember what happened to Anna Nicole's daughter Dannielynn? [A fitting way to wrap up the last post of the year... with one of the more notorious deaths in 2007.]

Read the article from bankrate.com about this common mistake.

To avoid this mistake should it have drastic consequences for your estate, review your estate planning documents including your Wills and Trusts to see what provisions are in there for intentionally omitting after born children. If you don't understand this provision or want to double check, check in with your estate planninig attorney.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Year End, New Year's Reminders

While you are organizing and putting away things around the home from the holiday season, don't forget to review your existing estate plan. If you don't have an existing estate plan, 2008 would be a great year to get started.

For 2008:
1. Review your existing estate plan. Things to look for: make sure your wishes are being met, make sure your asset schedule is up to date and make sure the family structure (births, divorces and deaths), nominations for trustees and any special provisions remain applicable.

2. Check your beneficiary designations for all of your financial products (retirement accounts, life insurance policies, annuities, bank/brokerage accounts) to ensure they are up to date

3. If you have a trust, make sure all of your important assets as advised by your attorney are transferred into your trust (double check newly acquired assets and real property holdings)

4. Work with your attorney to update your estate plan, beneficiary designations and asset transfers accordingly

5. If you don't have an estate plan in place, make 2008 the year it gets done

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Simply What the Client Needs.

Most clients ask for a simple will or trust.  They never ask for a complex will or trust.

So, of course, most estate planning attorneys do prepare these simple wills and trusts for their clients. They are exactly the estate planning documents that their clients need based on their circumstances, future situations and wishes.  It is simply what the client needs.

For 2008:
1. Review your existing estate plan

2. Check your beneficiary designations for all of your financial products (retirement accounts, life insurance policies, annuities, bank/brokerage accounts) to ensure they are up to date

3. If you have a trust, make sure all of your important assets as advised by your attorney are transferred into your trust (double check newly acquired assets and real property holdings)

4. Work with your attorney to update your estate plan, beneficiary designations and asset transfers accordingly

5. If you don't have an estate plan in place, make 2008 the year it gets done

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Estate Planning In Time.

Estate Planning must be done in time. Meaning before you pass away.

Recently I was called to consult on two cases where the potential clients were diagnosed with the same type of serious cancer.

One person wanted to wait because he was going to fight it. He is still fighting it. He may make it. But he refused to see the value of a power of attorney, at least for his closest friend who happens to be his ex-wife or even the value of doing a trust to capture his home, his boat and his business in case he needs the help managing these assets while fighting the cancer.

Too late is what happened to the other person. After the initial consultation and agreement that estate planning documents were in order, I was poised to have the documents done in a rush and within the week for this person to sign. From exactly a week from when we met, the person died suddenly and so unexpectedly. My heart just reaches out to that person's family. Luckily, since most of the assets were held in joint tenancy, probate should not be much of an issue, but there were other outstanding issues that warranted a need for a Trust.

Consult with your estate planning attorney about getting your estate planning affairs in order.

Knowing the Law and the Issues are Important!

I am simply amazed.

Attorneys will often to talk to each other about interesting or tough issues as they come in their practice areas. Sometimes I get an inquiry from an estate planning colleague about an issue that really makes wonder if they know what they are doing.

A few days ago one attorney asked about estate planning for a non-U.S. citizen spouse and how to handle. He asked if anyone had any samples of trust documents to include for this situation. This question was alarming for a few reasons -- it indicated that the attorney did not have practice area books with sample forms and languages in his office, did not have online access to such forms or samples and could not get the gist of the issue to handle the research on their own without asking on a general forum to all attorneys.

Sure, general forums are helpful for the interesting cases or to talk strategy, but for what I thought was an experienced attorney and has been practicing in a certain area for many years -- some of the basic issue questions can be scary and really show lack of knowledge.

The scarier part is how can a client tell this? As a client, how can you gauge how respected your attorney is? How knowledgeable he or she is? It's a tough one.

Do You Know What Happens When You Die?

The answer to the title question is to have your estate plan in place to ensure that your wishes will be honored when you die.

Wishes with regards to end of life care, who gets what and how you want to leave a legacy can all be taken care of now.

Do you want to be known as that long lost great Aunt who didn't have a Will or Trust, but had her estate distributed amongst 20 nieces and nephews who were all surprised to get that check?

Do you want to be that young Mom that died before her time and didn't leave a Trust in place for her minor children?

Do you want to be that elderly man who inherited property from his brother but failed to transfer that property to his trust requiring probate to be opened all over again?

Do you want to be that Grandma that lovingly leaves a small bequest to each grandchild and the remainder of the estate in Trust for her only son?

Think about it and then consult with an estate planning attorney to do the following:

1. Figure out what happens when you die.
2. Make sure what you want to happen, happens when you die.