ESTATE PLANNING

Published on: August 20, 2016

Does the Personal Representative of My Estate Get Paid?

Administering a California probate estate is often a time-consuming affair. The personal representative (or executor) of your estate is responsible for gathering and maintaining all of your assets, paying any legitimate creditor claims, and ultimately ensuring all property is distributed according to the terms of your last will and testament. Depending on the size and complexity of your estate, the personal representative may end up spending up hundreds of yours settling your affairs.

How California Sets Compensation Levels

For this reason, California law recognizes the personal representative’s right to receive compensation for his or her services. The maximum allowable compensation for “ordinary services” is determined as a percentage of the total value of the estate. For estates valued at $100,000 or below, the personal representative’s compensation cannot exceed 4%. This means that, for instance, if you leave a probate estate worth $80,000, your personal representative cannot receive more than $3,200 in compensation.

Published on: August 19, 2016

Do I Really Need a Will if I am Under the Age of 30?

by Scott C. Soady

Many younger people think they do not need to concern themselves with making a last will and testament. A will is something that older people make when they are in poor health or even on their deathbed, right? Of course, that is ludicrous thinking. Every day we see reports of people cut down in the prime of their lives due to an accident, and in many cases those individuals died without taking the time to make a proper estate plan.

“Star Trek” Actor’s Sudden Death Highlights Legal Effects of Dying Without a Will

Anton Yelchin, a 27-year-old actor residing in Los Angeles, died this past June after he was accidentally crushed by his own car. Yelchin was best known for his appearances in the recent “Star Trek” feature films, the most recent of which premiered shortly after his death. Recently, Yelchin’s parents filed a petition to open a probate estate for their son, who they say died without leaving a will.

Published on: August 1, 2016

Estate Planning, Charitable Pledges, and Community Property

by Scott C. Soady

Many people pledge money to charity as part of their estate planning. In California, charitable pledges are generally not enforceable in court unless the donor receives some consideration, thereby creating a binding contract. For example, if a college offers to name a building after you in exchange for your gift, that would be consideration for your pledge. If you pledge money contingent on other people making similar donations, that would constitute mutual consideration among all of the donors.

If you do make a binding pledge as part of your estate plan, however, make sure you consider the wishes of your spouse. Under California law, any community property held by a married couple is owned one-half by each spouse. This means you may not make a gift of your spouse’s share of such property without his or her consent.

Ex-Husband Cannot Pay for Pledges With Ex-Wife’s Share of Community Property

Published on: July 31, 2016

Should My Estate Plan Be Digital?

by Scott C. Soady

For many of us the “paperless office” is a reality. Our personal and professional lives reside online through our laptops, smart phones, and cloud storage. But what does this mean for our estate planning?

An article on CNBC.com discussed the growing popularity of “digital document archives,” which offer specialized cloud storage for estate planning materials including wills, powers of attorney, and health care directives. The idea behind such services is to make it easier for family members or other fiduciaries to locate important estate planning documents. For example, if a person dies, his or her executor could go to a digital archive and promptly download a copy of the will.

Are “Digital Wills” Admissible in California?

Published on: July 29, 2016

When Should I Specify Conditions on Distributing Income From a Trust?

by Scott C. Soady

A revocable living trust is a useful estate planning tool when you want to make provisions for your family members beyond your death. A trust need not distribute all of its assets upon your death. You may instruct your trustee to retain the trust principal and distribute only the income at periodic intervals to your designated beneficiaries. This can ensure your beneficiaries receive a steady stream of income for many years.

Ex-Wife Continues to Collect From Late Father-in-Law’s Trust

It is important to be as specific as possible when spelling out the conditions for any income distributions under a revocable living trust. A recent California probate case offers a useful cautionary example. In this case, a man created a revocable living trust in 1977 just before he died. The trust became irrevocable on his death and remains in force today.

Published on: July 14, 2016

How Can My Divorce Settlement Affect My California Estate Planning?

by Scott C. Soady

There are many legal events that may affect your estate planning. For example, if you get divorced, the terms of your property settlement may require you to alter the terms of your will or trust. It is therefore important to resolve any potential legal question about your estate plan prior to your death, as any ambiguity may lead to costly and unnecessary probate litigation afterwards.

Children, Stepmother Spend Years Fighting Over Retirement Account

A long-running probate case from here in San Diego offers a helpful example. This case involves the estate of a man who died in 1998. The decedent’s prior marriage ended in divorce in 1977. The divorce included a property settlement, approved by an Illinois court, that required the decedent to make provisions in his estate planning such that the couple’s two children would receive one-half of his “net estate” upon his death.

Published on: July 10, 2016

Taking Proper Inventory of a Probate Estate

by Scott C. Soady

An essential function of the personal representative of a probate estate is to identify and inventory the estate’s assets. Keep in mind, an estate’s assets at death may not be limited to property and funds in possession of the decedent at the time of death. If the decedent was a party (or potential party) to any civil lawsuit, any future proceeds from such a case may also be considered an estate asset.

Lawyer’s Statement Does Not Prove Intent to Disclaim Share of Judgment

A recent California case illustrates this point. This case is discussed here for informational purposes only and should not be treated as a complete statement of California law on this subject.

Published on: July 7, 2016

How Does Estate Planning Work With Unmarried Partners?

by Scott C. Soady

Marriage is not for everyone. Many couples are happy in long-term relationships that do not result in marriage or even a legally recognized domestic partnership. But if you are in such a relationship, you and your partner should consider the estate planning implications if one of you passes away. California law does not treat married and unmarried partners in the same way. A spouse has certain automatic community property and inheritance rights that an unmarried partner does not.

Partner’s Settlement Ends Up Hurting Her

That is not to say unmarried partners are completely unprotected. Since the 1970s, California courts have accepted and enforced contracts between unmarried partners. This can include oral promises to treat property acquired by either partner during the relationship similarly to community property. In these types of cases, commonly known as “Marvin petitions,” the surviving partner may seek to enforce these promises.

Published on: June 27, 2016

Estate Planning, Charitable Pledges, and Community Property

by Scott C. Soady

Many people pledge money to charity as part of their estate planning. In California, charitable pledges are generally not enforceable in court unless the donor receives some consideration, thereby creating a binding contract. For example, if a college offers to name a building after you in exchange for your gift, that would be consideration for your pledge. If you pledge money contingent on other people making similar donations, that would constitute mutual consideration among all of the donors.

If you do make a binding pledge as part of your estate plan, however, make sure you consider the wishes of your spouse. Under California law, any community property held by a married couple is owned one-half by each spouse. This means you may not make a gift of your spouse’s share of such property without his or her consent.

Ex-Husband Cannot Pay for Pledges With Ex-Wife’s Share of Community Property

Published on: June 26, 2016

Should My Estate Plan Be Digital?

by Scott C. Soady

For many of us the “paperless office” is a reality. Our personal and professional lives reside online through our laptops, smart phones, and cloud storage. But what does this mean for our estate planning?

Recently, an article on CNBC.com discussed the growing popularity of “digital document archives,” which offer specialized cloud storage for estate planning materials including wills, powers of attorney, and health care directives. The idea behind such services is to make it easier for family members or other fiduciaries to locate important estate planning documents. For example, if a person dies, his or her executor could go to a digital archive and promptly download a copy of the will.

Are “Digital Wills” Admissible in California?