Articles Posted in Uncategorized

An Australian judge recently issued what may be the first court decision of its kind anywhere in the world. Justice Peter Lyons of the Supreme Court of Queensland ruled in early November that a last will and testament found on a suicide victim’s iPhone was admissible to probate. The deceased individual apparently typed the will on the “notes” application of the phone. According to the Brisbane Courier-Mail, Justice Lyons said “although the will had not been witnessed, the young man had created it with the clear intention of it being legal and operative before he ended his life just moments later.” The judge added this was an unusual circumstances and people should not ordinarily prepare wills on their mobile phones.

“Holographic” wills are legal in many common law jurisdictions, including California, but they still must meet certain requirements. In California, a holographic will must be entirely in the maker’s handwriting and signed. Unlike typewritten wills, a holographic will need not be witnessed to be admissible under state law.

It’s important to understand, however, that holographic wills may not be treated the same in every state (or foreign country). That is why they are not recommended as estate planning documents. A recent case from the State of New Jersey helps explain the problems that can arise with holographic wills.

When it comes to California estate planning, it’s important to understand that you’re dealing with a legal process. The administration of estates (and trusts) is strictly governed by California and federal law. It is not a casual or informal procedure. Personal representatives and trustees should always work with an experienced estate planning attorney to guide them through this legal process.

It’s especially inadvisable to represent yourself in connection with a trust or estate matter that’s already in court. Consider this recent case from a federal court in San Francisco. In 2006, Helen Evans took out an adjustable rate home equity conversion mortgage-popularly known as a “reverse mortgage”–on her residence in the amount of $544,185. With a reverse mortgage, the borrower need not make any payments until he or she no longer resides in the property secured by the loan.

When Evans died years later, the mortgage holder, Wells Fargo, demanded full repayment of the outstanding balance, which was nearly $250,000. Wells Fargo foreclosed on the residence and moved to sell it at auction. Evans’ son, Leonard Evans, objected and decided to take matters into his own (legal) hands. Acting without an attorney, Evans sued Wells Fargo in Contra Costa County Superior Court, alleging various defects in Wells Fargo’s actions.

Does a contract survive the death of one of the parties? A California appeals court recently looked into this issue and found that it did. The case, involving an attorney who performed contingency fee work in relation to another estate, serves as an important reminder that estate planning extends past your personal assets into your business. If you’re a self-employed professional it’s essential you make provisions for “winding up” your business as part of your estate plan.

In the recent Court of Appeals case-discussed here solely for informational purposes-the late Dale Sare had previously been hired by two sisters, Antonia Shad and Mary Tsouris, to deal with a number of legal matters related to the conservatorship (and later probate estate) of their half-brother, Dan Mathisen. In March 2006, Shad and Tsouris signed a contingency fee agreement with Shad, entitling him to one-third of any money that the sisters received “as conservators or beneficiaries” of Mathisen. Sare initially performed his work without signing this agreement; however, he signed a revised contingency fee contract about a month later. The revised agreement restated Sare would receive one-third of any funds the sisters recovered as conservators or beneficiaries of their brother.

Sare performed legal services related to Mathisen’s conservatorship until February 2007, when Mathisen died. At this point, Sare began to perform legal work related to Mathisen’s probate estate. The sisters sought to recover cash and various items of personal property from the estate. Eventually, the sisters received over $800,000 from Mathisen’s estate.

Financial abuse of the elderly occurs when a person, often a relative, exercises undue influence over the affairs of another person who is unable to manage his or her own resources. Under California law, a person who commits elder financial abuse cannot benefit from the victim’s estate. In such cases, which usually involve the abuser forging or coercing the victim’s signature on new estate planning documents, the court will disinherit the abuser of his or her ill-gotten gains.

A recent California appeals court decision provides a cogent example of elder financial abuse. The case is discussed here purely for informational purposes and should not be construed as a binding statement of California law. As always, you should consult with an experienced California estate planning attorney who can advise you on the particulars of your own case.

Taking Advantage of a Mother’s Mental & Physical Decline

Political news for the rest of the month will be dominated by talk of one thing: the ominous “fiscal cliff.” So what exactly is it and how might it affect you?

The “cliff” refers to a series of mandatory spending cuts and tax increases that are set to take effect at the end of the year. They will be avoided only if Congress and the President reach an agreement on an alternative compromise plan. The cliff itself would cause about $600 billion in immediate spending cuts on top of $500 billion in annual tax increases. While this drastic action may help realign a budget in the red, it also has many worried that it could send the country into another recession. Few on either side of the aisle actually want the specific proposals in fiscal cliff to take effect, but they do not see eye to eye on the alternatives.

If the stalemate cannot be broken, what does that mean for you?

A “will contest” involves a formal objection raised against the validity of a will–part or all of the document can be contested. Law firms that practice estate planning are often asked about the validity of wills or the feasibility of overturning a will. In many cases the reality is that it is difficult to get the terms of a will thrown out–though it is not impossible. The main reason wills are so difficult to overturn is because there are only four very specific legal grounds that can be used.

Objection #1: Invalid Process

If a will was not signed in accordance with applicable state laws, the will is not valid. In most states, a will must be signed in the presence of at least two witnesses who observed the testator signing the document. The witnesses must also sign the will in each other’s presence order to make it valid. Not meeting these requirements are the most common reasons for a Will to be contested; especially if there is only one witness. In cases where the testator was not present, the defect can often be corrected if witnesses testify under oath that the testator confirmed to them that his signature was valid.

Armed with good intentions many parents leave everything they own to their children after they die.

However, problems may arise if the language they used in their will says that “everything is to be split equally among the beneficiaries.” Using such language is often found in a simple will. It may work out just fine in some cases; but in bigger families, simply splitting everything equally may cause a lot of unnecessary squabbling. When the time comes to actually split up the inheritance, issues such as who gets the Swiss cuckoo clock in the hallway, Aunt Matilda’s silver spoon collection and Uncle Henry’s portrait over the fireplace, can become real concerns.

In fact, it’s not uncommon to see once-loving siblings fighting about their inheritance, and sometimes it begins even before their parents are even gone. It’s also not unusual for parents to accidentally promise various heirlooms to more than one person.

Estate planning is, in part, about making inheritance designations for assets left over after a passing. Of course, hand-in-hand with assets are debts. Understanding those potential debts at death, and making plans for the payment of all liabilities, is also factored into comprehensive estate plans dealing with long-term financial preparations.

This work is important for many reasons, not least of which is avoiding potential surprises where another is held personally responsible for debt accrued by the one who passed away. In general,

upon one’s passing, all of their debts are paid off first, with the remaining assets divvied out according to the wishes listed in planning documents. If one’s debts are larger than assets, those creditors may be forced to take a loss. Surviving family members are generally not liable for the unpaid debts

Estate planning attorneys work with residents to plan for their financial future and plan inheritance issues for families. It is crucial not to forget that this planning does not occur with just one meeting. That’s because the plan must be edited from time to time to accommodate changes in the law, changes in family life, or changes in one’s long-term wishes. Failing to appreciate the need to update planning documents can have serious adverse effects.

For example, a recent Reuters article shared the story of estate planning gone awry and the legal ramifications of the failure to properly update these documents.

The Story

It is crucial to have a trusted and competent professional fiduciary as needed on your probate case. As the professional fiduciary has access to all accounts, they need to be trusted, honest and licensed by the State of California and verified. In most cases, the professional fiduciary is private and hired by a private party. The San Diego Union Tribune, in 2011, posted an article about a professional fiduciary who was hired by the San Diego Superior Court and who used money entrusted to her for gambling.

The professional fiduciary, Teresa Laggner, had been appointed by the San Diego Superior Court for over 13 years. The allegations include that she misappropriated, for her gambling and other use, over $2,000,000. The allegations also include the time periods from 2006 through 2011. Ms. Laggner was charged in the United States Federal District Court with criminal offenses which, as punishment, can have her incarcerated for many years.
Continue reading