ESTATE PLANNING

Published on: April 23, 2016

Can My Estate Sue the Persons Responsible for My Death?

Estate planning is not just about disposing of what you have now, but also dealing with any unresolved legal claims that may exist at the time of your death. For example, if you have filed a civil lawsuit against someone, that case does not automatically end just because you die. The personal representative of your estate can continue the lawsuit on your behalf.

Survivorship Claims

There are also potential legal claims that may arise due to the circumstances of your death. Two common examples are car accidents and medical malpractice. If a person dies due to the negligence of another, the estate may pursue what is known as a survivorship claim. This allows the estate to seek compensation for its own expenses—the costs of the decedent’s funeral, medical expenses, etc. —with the balance of any potential judgment reserved for the beneficiaries named in the decedent’s trust or last will and testament.

Published on: April 22, 2016

Is Favoring a Relative in Your Estate Plan Proof of Elder Abuse?

by Scott C. Soady

It is an unfortunate reality that many people take advantage of the elderly and the mentally infirm. California has laws to prevent such elder financial abuse. Among other things, the law prohibits “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” For example, pressuring an elderly woman with dementia to sign a last will and testament naming a particular individual as the sole beneficiary of her estate could be considered elder financial abuse.

Court Rejects Daughter’s Allegations Against Nephew

But just because an elderly person may not be as sharp as they once were, that does not mean he or she is a victim of elder financial abuse. Nor does it necessarily defeat any estate plan the elderly person might have made. A recent California case helps illustrate this point.

Published on: April 16, 2016

Court Resolves Family Fight Over Marie Callender Heir’s Trust

by Scott C. Soady

When you create a revocable living trust, your trustee has a legal duty to ensure your wishes, as expressed in the language of the trust document, are carried out. There may be pressure from family members or other interested parties to alter the trust’s meaning for their benefit, but at the end of the day, a California court will always look at the intentions of the person making the trust. Since most trust disputes occur after the settlor’s death, it is therefore important to seek the assistance of a qualified California estate planning attorney in drafting any trust instrument.

San Diego Court Rejects Unusual Trust Calculation Method

Recently the California Fourth District Court of Appeal, which has jurisdiction over San Diego and surrounding counties, decided a major case involving trust interpretation. The settlor was the late Donald Callender, the son of Marie Callender, the famous California restauranteur. Although the family’s namesake restaurant chain was sold in the 1990s, Donald Callender retained an interest in the licensing of the Marie Callender’s name, which combined with his other assets left a trust worth over $143 million at the time of his death in 2009.

Published on: April 15, 2016

How Does a Guardianship for Minors Work?

by Scott C. Soady

A guardianship is a type of probate proceeding where a person is appointed to oversee the property and finances of a minor. There are many circumstances that might necessitate such a guardianship. For example, if a minor inherits or receives a large amount of money, a court may appoint a guardian to take custody of those funds. The guardian can then make periodic disbursements of estate funds to pay for the minor’s education, health, or overall maintenance.

Guardianships and Structured Settlements

Here is an example of how guardianships work. This is a recent case from here in San Diego. In 2005, a San Diego resident was killed after a tree fell on his truck during a rainstorm. His family subsequently filed a wrongful death lawsuit against the City of San Diego, which led to settlement agreement. The settlement provided for payments of $1,100 per month to the each of the victim’s two minor children. The children were also slated to receive lump-sum payments on their 16th birthdays and stipends to pay for their college educations. The City financed this structured settlement through the purchase of an annuity from an insurance company.

Published on: April 11, 2016

How “Toxic Succession” May Affect Your Estate Planning

by Scott C. Soady

Many of us want to leave our home or other real property to our loved ones. But keeping property “in the family” can prove costly. For example, if a the land you own is contaminated by any type of environmental hazard, your heirs may end up footing the cleanup bill. Proper estate planning can help avoid these situations.

Heirs Stuck With Cleanup Costs of Parents’ Land

The New York Times recently reported on this subject of “toxic succession.” The Times discussed the case of a Los Angeles woman who “inherited a few pieces of property when her mother died in 1999.” The property was heavily polluted and ended up costing the woman $2 million between the cleanup and lost rent.

Published on: April 10, 2016

The Uses and Limits of “Dead Hand Control” in an Estate Plan

by Scott C. Soady

As a general rule, you have the right to dispose of your property in a last will and testament as you see fit. For example, you could choose to disinherit one or all of your adult children. You can also make gifts to individuals and institutions subject to certain conditions, such as requiring a college to use your bequest for a certain program. Such conditional gifts are sometimes referred to as “Dead Hand Control,” as the person making the will is effectively trying to exercise ongoing control of his or her property even after death.

Canadian Court Rejects Racist, Homophobic Gifts

But there are limits on Dead Hand Control. Courts can refuse to enforce a conditional gift or bequest in a will if it violates “public policy.” What exactly does that mean? For one thing, you cannot condition a gift on the beneficiary committing an illegal act.

Published on: April 9, 2016

Writing Your Own Will Can Lead to Legal Problems

by Scott C. Soady

There are many reasons why it is a bad idea to write your own will. For one thing, you may not be familiar with the proper usage of certain legal terms, which can lead you to write something that may be interpreted in a completely different manner by a probate court. A recent California case illustrates how even a single word can spark years of unnecessary litigation after your death.

Heir vs. Beneficiary

This case is only an illustration and is not a definitive statement of California law. This case actually involves two estates—that of a mother and her son. The mother died in 1992. She left a handwritten, four-paragraph will naming her son “as sole heir and executor to manage estate affairs.”

Published on: April 8, 2016

What Happens When My Business Plan Conflicts With My Estate Plan?

by Scott C. Soady

Estate planning can get complicated when you own your own business, especially if you have one or more partners. You need to take care that your personal estate planning—your will or trust—does not conflict with any documents governing your business relationships. Such conflicts can create significant legal and tax issues after your death.

Business Partner’s Objections Hold Up Administration of Trust

A recent case decided by a Los Angeles appeals court offers a helpful illustration. Two men formed a real estate management company in 1969. The company is a holding vehicle for nearly two dozen other corporate entities. The agreements between the two men apparently provided that one could not transfer his interest in the business without the consent of the other.

Published on: April 1, 2016

What Happens to My Mortgage After I Die?

by Scott C. Soady

American homeowners are collectively carrying nearly $10 trillion in mortgage debt according to the most recent statistics published by the Federal Reserve. This has important estate planning implications. Unlike unsecured debts, a mortgage is tied to a house, not an individual. This means that after you die, your estate and heirs may be stuck paying off your mortgage.

The Mortgage Still Must Be Paid

The terms of a mortgage loan generally do not change due to your death. The executor of your estate must continue making monthly payments on the mortgage to keep the loan current. If you want to keep the home “in the family,” your heirs must be able to take over these payments or attempt to renegotiate the loan to secure a more favorable interest rate.

Published on: March 31, 2016

What Happens to My Fiancée If I Die Before We Marry?

by Scott C. Soady

Although a last will and testament remains valid indefinitely, you should still review your estate planning every few years to account for changes in your life. Leaving a will unchanged for many years may lead to a situation where someone close to you is unintentionally omitted from receiving a share of your estate. Conversely, there may be situations in which you wish to exclude someone provided for in an earlier will.

Ex-Mayor’s Fiancée Left Out of Will

Earlier this year the longtime former mayor of Providence, Rhode Island, Vincent A. “Buddy” Cianci, passed away at the age of 74. Cianci held the mayor’s office for more than 20 years before he was convicted of federal corruption charges in 2002 and sentenced to 10 years in prison. Just before entering prison, Cianci signed a last will and testament.