ESTATE PLANNING

Published on: July 14, 2017

How Different Powers of Attorney Can Affect Your Legal Rights

There is an important distinction in estate planning between a power of attorney for financial affairs and an advance directive, also known as a power of attorney for health care. Both documents fulfill a similar purpose – appointing an agent to act on your behalf when you are incapable of doing so for any reason. In many cases, people choose to appoint the same person as agent for both purposes.

Court Invalidates Arbitration Agreement Signed Under Non-Healthcare Power of Attorney

A power of attorney and an advance health care directive are not interchangeable. When it comes to making “health care decisions” for you, a person holding only your power of attorney for financial affairs is powerless to act. Of course, defining what constitutes a “health care decision” is not always so clear.

Published on: July 13, 2017

How California’s New “Digital Estate Planning” Law Affects You

by Scott C. Soady

For previous generations, disposing of your property at death meant dealing with physical assets and intangible wealth such as cash or stocks. Today we also need to think about digital assets as part of our estate planning. Just think about how much of your life is kept online, from your bank account passwords to family photos on your Instagram page. Now consider what happens to all of that data if you die unexpectedly.

Protecting Your Privacy While Giving You More Control

A recent German case involving a deceased 15-year-old girl’s Facebook page made international headlines. The victim’s parents believed that she was a victim of suicide and wanted to access her social media posts to look for supporting evidence. In May, an appeals court said granting such access would violate the decedent’s “right to privacy,” which outweighed the parents’ “right to inheritance” under German law. As Reuters noted, “Privacy remains a sensitive issue in Germany due to extensive surveillance by Communist East Germany’s Stasi secret police and by the Nazi era Gestapo.”

Published on: July 11, 2017

California Legislature Clarifies Pour-Over Will Laws

by Scott C. Soady

A living trust is a common California estate planning tool that helps you avoid probate. In theory a trust is relatively straightforward. You sign a document creating the trust and naming a trustee–usually yourself during your lifetime–and then transfer various assets into the trust. For major items like your home, you will actually need to sign a new deed transferring the real property from you as an individual to you as the trustee of the revocable trust.

Living trusts are not foolproof. There will likely be some assets that you neglect to transfer into the trust while you are still alive. To address this, it is a good idea to have a “pour-over” will, which is basically a last will and testament that gives any remaining property in your probate estate to your living trust at death.

Trusts Can Now be Created After Pour-Over Wills

Published on: July 10, 2017

Can My Spouse Benefit From My Pension if We are Separated?

by Scott C. Soady

A legal separation or divorce can have a profound effect on your estate planning. Under the California Probate Code, a “surviving spouse” has no inheritance rights if there is an “order purporting to terminate all marital or registered domestic partnership property rights.” Put another way, if you die without leaving a will, and you are legally separated from your spouse at the time of your death, he or she will not inherit under California intestacy law.

Court Rules Probate Code Language Does Not Apply to County Pensions

The Probate Code does not cover all property issues that may arise after you die. Many retirement and pension plans are governed by separate laws that allow you to designate a beneficiary independent from the provisions of your will or trust. A divorce or legal separation may not necessarily affect such designations.

Published on: July 9, 2017

How Estate Planning Affects Your Business Agreements With Family Members

by Scott C. Soady

Doing business with family members is always complicated. It can get even more complicated if one family member dies before a business transaction is completed. Most of us are understandably reluctant to push a legal matter, even one involving estate planning, when a relative is ill or possibly dying. Unfortunately, California judges cannot allow whatever sympathy they might feel for the family to override the law.

Sister Waits Too Long After Brother’s Death to Enforce Contract

Consider this recent case from right here in San Diego. A woman and her husband entered into a real estate deal with her late brother. The brother was in the business of “flipping” properties. The sister and brother-in-law were looking to buy a house for themselves.

Published on: May 28, 2017

Do Illegitimate Children Have Inheritance Rights Under California Law?

by Scott C. Soady

There was a time when only legitimate children–i.e., children born to a lawfully married couple–could inherit property from a parent. Modern law in California and most states have largely eliminated the distinction between legitimate and illegitimate children, but it can still be an issue in some probate situations.

For example, a court in the Canadian province of Ontario recently denied a man a share of his late grandmother’s estate because he was born out of wedlock. The grandmother’s will, which she signed in 1977, left shares to each of her “children” or their descendants. Ontario law at the time defined “children” as only including those born in wedlock. Ironically, Ontario changed the law in 1978 to include illegitimate children, but the court in this case said that did not apply to pre-1978 wills.

Establishing Paternity When There is No Will

Published on: May 26, 2017

How Affidavits Can Simplify or Complicate the California Probate Process

by Scott C. Soady

Not every California estate has to go through a formal probate administration. If you do careful estate planning and transfer all of your personal assets into a living trust, for example, you can ideally leave no probate estate at all. But even if you do not have a trust, if you leave a California estate worth $150,000 or less, your heirs can use a simplified affidavit process to transfer certain personal property without going to court.

Court Penalizes Stepdaughter for “Fraudulent” Affidavit

The affidavit process only applies to personal property such as bank accounts and stocks, and not real estate, like your house. The person who has the legal right to inherit the property must file the affidavit after your death. If you have a will, that means the beneficiaries you named to inherit your property. If you do not leave a will–i.e., you die intestate–then your heirs under California law have the right to file the affidavit.

Published on: April 20, 2017

How Does a Reverse Mortgage Affect My Will or Trust?

by Scott C. Soady

Living in southern California gets more expensive every year. For many elderly San Diego residents on a fixed income, just paying monthly bills can be a struggle. This is one reason “reverse mortgages” have become popular in recent years.

How Reverse Mortgages Work

Most of us have taken out a home mortgage loan at some point in our lives. The typical mortgage is a 30-year loan secured by the property being purchased. Each month the borrower must make fixed payments towards the mortgage’s principal and interest.

Published on: April 19, 2017

Have You Talked to Your Family About Estate Planning?

by Scott C. Soady

Estate planning is a process that affects your entire family. The decisions you make today regarding your will and trust can affect your spouse, children, and other relatives years down the line. This is why it is important to make sure your family is aware of your estate planning intentions.

52% of Americans Have No Will

BMO Wealth Management, an international bank based in Montreal, recently released the results of a survey it conducted of 1,008 American adults about their attitudes towards estate planning issues. The report, called “Estate Planning for Complex Family Dynamics,” offers some interesting insights into how the average American views the estate planning process, in particular how they responded to their own experience with inheritances.

Published on: April 18, 2017

Does Your Will Need a “Titanic” Clause?

by Scott C. Soady

If you are married or in a long-term relationship, your estate plan will likely name your partner as the principal beneficiary under your will or trust. But what if you both die in a common accident? The law in this area can get a little complicated.

California’s 120-Hour Rule

When a California resident dies without a will, the state’s intestacy law dictates the distribution of property. If you have a surviving spouse but no children, the spouse automatically inherits everything. If you have children, your spouse inherits all of your community property and splits any separate property with the children.