Estate Planning Practice Blog

Your 18 Year Old Daughter on Spring Break?

A question asked by one attorney to another recently:

I have an 18 year old daughter headed to a Spring Break designation with her best friend and her parents. What documents does she need to bring with her to ensure that if something happens, decisions can be made by her friend's parents?

The answer:

If your child is now age 18, your child is now legally an adult and your ability as his or her parent is restricted to terms of making any decisions without permission.

This means that every 18 year old should have a durable power of attorney and advance health care directive documents in place naming their choice of agents (hopefully that would be Mom and Dad) to make financial and medical decisions for them in the event they are unable to do so.

For the Spring Break soirée, the child could also have  a limited duration power of attorney and advance health care directive naming her friend's parents to make decisions for her in the event something happens.

It's hard to imagine, but at age 18, making decisions now fall upon your children alone and your access as their parent is limited including making medical decisions, access or get info about banking, school loans, financial aid, and grades (to name a few examples) without legal permission. Think of it as a reverse permission slip!

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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.

Nominating Guardians for Minor Children - The Part You Don't See.

One of the most important things a parent can do is make their nominations for guardians in writing for their minor children in the event something should happen to them.

In California, you can nominate a guardian in a variety of ways with a nomination in a Will being the most common. That being said, our firm recommends that nominations for guardians be included in a Will for most parents.

This is important to remember and we are constantly reminded everyday as we fight contested guardianship battles.

Just yesterday, TLD attorney Monica Goel successfully handled a contested guardianship in our local courts. A mother of a thirteen year old child nominated her very close friends to be her daughter's guardian should something happen to her in her Will. Something did happen and she died.

The close friends filed a petition for temporary guardianship based on the mother's wishes for the minor, which was vigorously contested by the minor child's great-uncle and second cousin. Since the mother's wishes were clear, the court hung its hat on honoring decedent's nomination and wishes.

This is the part that parents don't see because something has happened to them. Don't let this happen to your children.

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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.

Wrapping Up a Trust.

While trust administration is largely removed from any court oversight and is managed privately by the successor trustee(s), it is a good idea to formally wrap up a trust (any trust including a revocable living trust) where the settlor(s) (or creators) of the trust have died.

A Trust Distribution Agreement is designed to protect both the successor trustee(s) and beneficiaries of the trust after the settlor(s) has/have died.  This document is a formal agreement prepared by the successor trustee(s) that covers the following aspects of trust administration:

• Distribution Provisions (as understood by the parties and governed by the trust)
• Date of Distribution
• Proposed Distribution
• Funding Dates
• Preliminary Distributions (if any)
• Consent to Distribution by Beneficiaries
• Waiver of Notice (if appropriate)
• Waiver of Accounting (if appropriate)
• Reserve Amounts (if appropriate)

It should also include language for governing law and appropriate indemnification clauses. Once such an agreement is prepared and agreed upon by the parties, the successor trustee(s) can finalize the trust and distribute the trust assets.

Consult with your attorney about trust administration and preparing a Trust Distribution Agreement to wrap up the trust. It is one of those things that will give you a peace of mind when administering a trust as a successor trustee.

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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.

To HIPAA or Not?

One of the more important components of a valid and up-to-date Advance Health Care Directive is ensuring that it has provisions allowing your agent to have unfettered access your medical information.

Under HIPAA and CMIA (Federal and California laws) medical information is now considered private and a release must be signed by you to allow your agent access. Having this release as part of your Advance Health Care Directive is a smart move.

An Advance Health Care Directive done as little as a few years ago may not contain a provision for a HIPAA and CMIA release. So check yours and get it updated. The provision should look similar to this:

HIPAA AND CMIA HEALTH INFORMATION RELEASE.  I intend my agent, as my "personal representative" as that term is used in the Health Insurance Portability and Accountability Act, 42 U.S.C. Section 1320d, 45 C.F.R. Parts 160 and 164, and as my "patient's representative" as that term is used in the California Civil Code Section 56.10, to be treated as I would be with respect to my rights regarding the use and disclosure of my individually identifiable health information and other medical records.  The authority of my agent with respect to the use and disclosure of such information and records shall control my agent's dealings with any physician or other health care provider who is providing health care services to me at any time when my agent shall seek access to such information and/or records.  Subject to any limitations in this document, my agent has the power and authority to do all of the following ... and so on it goes.

Protecting Triplets!

On a personal note, we take great pleasure and pride in assisting families with their business and estate planning objectives.

One of our partners had twins last week and one of our other name partners, Mark Doyle, is representing a family who had triplets not too long ago. And, I (Jenni Sawday) am expecting a second baby this May, which reminds me I need to get my own estate planning documents updated shortly after the new babe is born to practice what I preach!

 
Partner Mark Doyle, in the picture here, met with firm clients when they brought along their 8 month old triplets Toni, Sydney and Max.  The parents live in south Orange County and have business and real estate holdings.   In previous engagements, we established an estate plan, a corporation and LLC's for them. 

Now our current engagement involves working on a private charitable foundation, succession and gifting plan including life insurance. The TLD team will be working together again for these clients to benefit Toni, Sydney and Max years from now. 

Estate Planning -- It's No Joke.

One of the things about being an estate planning attorney is that when there is a joke circulating involving our practice, it can be both funny and sobering at the same time.

Here is a joke that was sent to me twice last week:

Dan was a single guy living at home with his father and working in the family business.

When he found out he was going to inherit a fortune when his sickly father died, he decided he needed a wife with which to share his fortune.

One evening at an investment meeting he spotted the most beautiful woman he had ever seen. Her natural beauty took his breath away. "I may look like just an ordinary man," he said to her, "but in just a few years, my father will die, and I'll inherit 20 million dollars."

Impressed, the woman obtained his business card and three days later, she became his stepmother.

Women are just so much better at estate planning than men.

The sobering part -- an estate plan is essential to have your wishes carried out when you die.

Sure, there are will contests, trust contests and all sorts of other things that can come up, but having your wishes known is really important in the larger scheme of things. The courts look to the testator or settlor's intent when ruling on these matters and in the long run, we all like to believe that the good outweigh the evil. And, as it so happens most of the time, people's wishes are dutifully carried out in their estate plans after their passing.

More on Conservatorships.

A conservatorship is often a poor substitute for estate planning. With a proper estate plan in place including powers of attorneys, assets funded into a trust and so on -- the hassles of a court oversight for a conservatorship can largely be avoided in most circumstances.  Moreover, the courts and the legislature are enacting more stringent requirements for conservatorships in general.

Here is a quick run down of some of the new requirements:

CARE PLANS
For conservatorships established as of July 2007, a Care Plan must be filed at least within 60 days of issuance of the Letters of Conservatorship. This Care Plan must be updated annually thereafter from the date it was first filed. Note that for conservatorships established before July 2007, a Care Plan may not be required unless specifically ordered by the court. INVENTORY
For every conservatorship, the court requires an inventory of the conservatorship assets be filed with the court within a specified number of days from the establishment of the conservatorship.

CHANGE OF ADDRESS
For every conservatorship, the court requires that the conservator notify the court immediately if they have moved.

ACCOUNTINGS
One of the most important aspects of the court oversight of all conservatorships is the accounting requirements. Each conservator is required to provide to the court an accounting of the conservatorship estate for approval. This includes tracking all financial and medical expenses borne by the conservatorship estate for care of the conservatee. It includes preparing an accounting in the required court format and having bank statements and other documentation available for the court's review.

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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.

Big Time Conservatorship: Britney Spears.

Judge Reva Goetz in Department 9 at Los Angeles Superior Court, Central Courthouse granted a temporary conservatorship over Britney Spears on Friday, February 1, 2008. It is known that a conservatorship naming her father to manage her finances was granted. It is not clear if powers were granted to also make medical decisions by her father or another person.

Conservatorships are granted where there is a good showing that an individual is unable to properly care for themselves financially and/or medically.

The attorneys at Tredway, Lumsdaine & Doyle often appear before Judge Goetz on probate, trust and conservatorship matters. It is interesting to hear about our regular lives as attorneys intersect with those of celebrities especially in Los Angeles.

For more information, which I am sure is readily available everywhere on the net, click here.

Spouses: Make Sure You Have Beneficiaries for Your Accounts.

If you and your spouse keep separate financial accounts and/or retirement accounts (for whatever reason), please make sure you have a beneficiary designated for these accounts.

Nearly every financial product, whether it be life insurance, annuity, IRA, brokerage account and even your basic run-of-the-mill savings account at a credit union has a payable on death provision available for you to indicate who should get the funds in that account when you die.

This is even more important between spouses especially if you want your spouse to get the funds after you die. (Well, it really isn't more important, but it is just more painful when a surviving spouse has to deal with this when it could have been taken care of.) You would be surprised how many men have accounts opened up and fail to designate a beneficiary and leave their widow at the mercy of the financial institutions.  Or maybe I am just the one who gets surprised when it happens to clients.

Sometimes you may not want your spouse to be the beneficiary, but in some states you may not have a choice especially in a community property state. If it is a separate property account, it is still a good idea to have beneficiaries named to make your wishes known when you die. If it is not separate property or you think you have a community property interest in that account, some states have procedures to petition for your share. In California, it is called a Spousal Property Petition.

As always, if you have questions about naming beneficiaries, talk to an estate planning attorney or other advisor for guidance.

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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.

Initial Probate Filing Fees Changed for 2008.

The filing fee paid directly to the court to open a probate case (e.g., file a petition for probate) has been modified in 2008.

The filing fee is based on the value of the estate as it will be inventoried to the court.

The initial filing fee is now $320.00 for probate matters.

Before the filing fee was based on the estimated value of the inventory and was payable at the time the petition for probate was filed.  The filing fee schedule is set by California Government Code Section 70650 et. seq.

For example:

The fee is $320.00 for estates or trusts under $250,000;
the fee is $385.00 for estates or trusts of at least $250,000 and less $500,000;
the fee is $485.00 for estates or trusts of at least $500,000 and less than $750,000;
the fee is $635.00 for estates or trusts of at least $750,000 and less $1,000,000;
And so on ...

Now, the fee to file a petition for probate is $320.00 and when the estate closes the estate then pays the graduated filing fee amount based on the actual final inventory prepared during the probate.

So if the estate ultimately comes to $501,000, the total filing fee is $485.00 and since $320.00 has been paid initially, the estate will pay directly to the court clerk an additional $165.00 before the court will order the estate closed. This is a good thing because usually at the outset the heirs or beneficiaries of the estate tend to have little or no cash to pay for these filing fees and can pay these fees directly from the estate at the time it closes.

And in case you are wondering, attorneys fees and personal representative fees are also set by statute and payable when the estate closes.