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.

Caregiving and the Case for Testamentary Freedom

Joshua C. Tate, Assistant Professor of Law, Southern Methodist University - Dedman School of Law; University of Pennsylvania Law School, has written another informative article. This time he writes about "Caregiving and the Case for Testamentary Freedom."

Excerpted from his abstract:

The article explores how almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not.

Tate contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. It deals with the growing problem of eldercare and how increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others.

Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly rather than to have laws in place that punish them.

Very interesting. You can download it here in pdf format. Be sure to scroll down and click on one of the downloadable links.

Living Trusts Are Revocable And Not An Asset Protection Tool

It comes up all the time.

A call comes in from a potential client: "I need to set up a living trust now to protect my assets. "

Generally, if the person (called the settlor) who created the living trust and transfers property to this living trust has retained the right to revoke the living trust then he also retains an interest in the trust assets. There is no protection from outside entities or creditors regarding what has been transferred into the living trust.

In other words, a living trust is known as a revocable trust.  As such, living trusts are not considered a vehicle for asset protection.  A living trust is used mainly to allow assets to transfer at death without going through probate or to allow a co-trustee or successor trustee manage assets in the event of incapacity of the settlor of the trust.

Consult with an estate planning attorney to learn more about living trusts. And if you have asset protection questions, be sure to mention your questions and concerns with your attorney as there may be other options out there based on your situation.

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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.

Firm Attorneys Giving Trust Admin Seminar on July 16, 2008

Partner Mark Doyle and Senior Associate Monica Goel are presenting a Trust Administration Procedures Seminar in Long Beach this coming July.  Click here for more information.

If you are going to administer a trust, want to learn how as a "just in case" or just need to get more education credits (if you are a professional), consider signing up for this seminar. One thing about Lorman seminars is that their printed materials offer excellent how-to/practical advice and steps on the topic being presented.

In the meantime, Mark, Monica and myself are available to handle your trust administration matters as they may come up. Mark primarily works in the Irvine office, Monica works in the Downey office and I work in the Long Beach office. Together, the three of us work as a team to handle your trust administration matters.

New Law Makes It Easy To Cancel Services

California Probate Code Section 217 prohibits businesses, such as the cable company, telephone company and other companies doing business in California from requiring or demanding a person who is handling a decedent's affairs to come to their facility or office to handle the cancellation of services in person.

What does this mean?

It means that when you call or write to the local utility company, cable company or any other business in California to cancel services for someone who has died -- they can't give you the run around. Sure, they might try, but there's a new law to protect you.

Best thing to do is to make your request to cancel such services in writing to have a paper trail and document in what capacity you are handling the decedent's affairs (say, as trustee, personal representative or surviving spouse to name a few).

If you need more assistance in handling a decedent's affairs, please consult with a probate or trust administration attorney for more advice for your situation.

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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.

Putting Bank Accounts in Your Living Trust

After you have established your Living Trust, one of the more important things you will need to do is fund your trust with your assets including bank accounts. This post only deals with bank accounts and not other assets that should also be included in a Living Trust. 

Once your Living Trust is set up, it is your job to contact all financial institutions where you have accounts to transfer those accounts to your trust. Here is a run down of what to expect.

1. Discuss with your attorney which accounts should be in your Living Trust. Sometimes not all financial accounts should be in your Living Trust.

2. For the accounts you have identified as belonging to your Living Trust, contact the financial institution and request that they re-title your existing account to your Living Trust.

3. Most financial institutions will want to see or keep a copy of the Living Trust on file. You can provide them with a Certification of Trust or a copy of the Living Trust -- depending on your comfort level.  Under California law they are supposed to honor a Certification of Trust in lieu of seeing the actual Living Trust document, but sometimes it is just easier to give the bank officer what they ask for rather than trying to drive home the legalities of the CA Probate Code Section 18100.5 as it relates to the Certification of Trust.

4. The account title should be updated in a manner that reflects how you have set up your Living Trust. For instance, "John Smith, Trustee of the John Smith Revocable Trust dated July 1, 2007."

5.  Not all banks will re-title accounts in a Living Trust. Some internet banks do not offer this option so be sure to check with the bank if you already have a Living Trust and plan to open a new account.

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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.

Obligation to Provide for a Minor Child?

Sometimes an interesting question is posed by a client -- do I have to leave something for my minor child in my Will?

Remember in most estate planning documents and for most families, a couple with children will typically leave their entire estate to their spouse or partner knowing that the surviving spouse or partner will properly provide for their children through their majority and beyond. But what happens if you don't leave your estate to the other parent and have a minor child in question? Are you legally obligated to provide for that minor in your estate planning document?

Well, it depends. (And this is appropriately framed by the Thursday, April 17 Lawyer joke of the day calendar entry: "A law school professor said to a graduating class, "Three years ago, when asked a legal question, you could answer, in all honesty, 'I don't know.' Now you can say with great authority, 'It depends.'")

It depends on which state you live in. Each state has different laws that may touch upon this issue.

It also depends if there is another document or obligation, which may be enforced at a parent's death and his or her estate to provide for the minor. For example, a divorce decree or judgment may state child support obligations incur beyond the death of the parent until the child reaches majority.

But typically, in California for instance, there is no legal obligation to specifically provide for a child in your Will or Trust.

This is an issue, however, that must be discussed with your estate planning attorney and addressed in light of your particular situation.

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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.

National Healthcare Decision Day

April is the month of special days.

The day after April 15, which needs no recognition, is National Healthcare Decision Day. Does this mean that after  you sign and seal your tax return, your health takes a turn for the worse and having an Advance Health Care Directive is necessary?

For more information about this day, check out National Healthcare Decision Day website.

The National Healthcare Decisions Day (NHDD) Initiative is a collaborative effort of national, state and community organizations committed to ensuring that all adults with decision-making capacity in the United States have the information and opportunity to communicate and document their healthcare decisions.

At Tredway, Lumsdaine & Doyle, we prepare an Advance Health Care Directive for every client as part of their estate plan. This document is a must for everyone over the age of 18 to make their wishes known as it relates to healthcare decision making.

On April 16, think of your own wishes and get your Advance Health Care Directive put in place or updated!

April 2 is World Autism Awareness Day

Bob Kraft, an attorney from Texas, has posted regarding World Autism Awareness Day.

For excellent and up-to-date information on autism, please visit Autism Speaks. They are recognized as the authority for information on autism on the internet.

Autism is a topic on the forefront of many parents either as a reality or on their minds as they raise their children. Newsweek also reported on this topic in a recent issue.

What is autism doing on an estate planning blog? Well, parents of autistic children should have their estate plans in place for more reasons than just one --

1. Nominate guardians for their children in case something happens to them. See our recent post on this issue and its importance here.

2. Consider whether your autistic child should be protected with a special needs trust either as a separate trust or part of your own living trust. Your estate planning attorney can discuss the pros and cons of a special needs trust based on your situation.

3. Put in place a care plan for your autistic child's needs and other important information for caregivers or alternate guardians in case something happens to you.

If something happens to you, your child may not understand either due to their young age or special needs.  Consult with an estate planning attorney to see how you can get your estate plan put in place to protect 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.

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.