San Diego Estate Planning Lawyer Blog

Published on: April 2, 2016

Is My Will a Matter of Public Record?

Privacy is always an important consideration when it comes to family and financial matters. This includes estate planning. For example, you may not want the general public—or even certain family members—to know about the specifics of your estate and how you choose to distribute it.

Famously Reclusive Author’s Will Sealed by Court Order

The well-known American author Harper Lee, who wrote To Kill a Mockingbird and its 2015 sequel, Go Set a Watchman, was famous for maintaining her privacy. The publication of Watchman more than five decades after Mockingbird was considered a major literary event. Lee died in February, 2016.

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.

Published on: March 30, 2016

Do I Have to Treat All My Children the Same in My Will or Trust?

by Scott C. Soady

Multiple children can complicate your estate planning. If you have children at different levels of maturity, you should take that into account when making a last will and testament or revocable living trust. Keep in mind the law does not require you treat your children identically. It is okay to make certain provisions for one child but not the other.

Keeping an Inheritance in Trust

It is a common estate planning practice to give part (or all) of your estate to a trustee who can manage your assets for the benefit of your children. Such a trust can be structured to allow the trustee to spend any necessary funds for your child’s health, education, and maintenance. The child would then be entitled to distributions of the trust’s principal at a certain age. This can even be done in multiple stages. For example, you could specify a child will receive one-third of her inheritance when she turns 21, another third when she turns 25, and the remainder when she turns 30.

Published on: March 12, 2016

Does My Will “Expire” After a Certain Number of Years?

by Scott C. Soady

Estate planning should not be a one-time event. As your life, family, and financial situation changes, you should periodically revisit and revise your estate plan accordingly. That said, it is important to understand that a will does not come with an “expiration” date. If you sign a will today and leave it untouched for the next 50 years, that same will is still legal and admissible before a California probate court.

Probate Court Admits 50-Year-Old Will

For example, a California appeals court recently upheld the admission of a will signed in 1965 by a person who died in 2012, some 47 years later. The deceased was a married woman who had separated from her husband some months prior to her death. The husband, believing his wife had died without leaving will, asked a probate court to appoint him as administrator of her estate.

Published on: March 11, 2016

Can the State of California Take My Estate After My Death?

by Scott C. Soady

A last will and testament allows you to specify the persons (or other entities, like charities) who will inherit your property after your death. If you fail to leave a valid will, California law provides for automatic inheritance by your heirs. But what happens if you do not have any heirs, or such heirs cannot be found after your death? In such situations, the State of California may claim—or escheat— your property for itself.

California Holds Billions in Unclaimed Assets

This is not just an issue that affects the estates of deceased individuals. All states have “unclaimed property” laws that allow government officials to seize private property if the rightful owner cannot be located for a certain period of time. In California that period is three years. So if you opened a checking account 10 years ago and have made no deposits or withdrawals since then, and had no contact with the bank, the state may seize the account as unclaimed property.

Published on: March 6, 2016

Planning for Succession in a Living Trust

by Scott C. Soady

When you create a revocable living trust as part of your estate plan, it is typical to name yourself as the initial trustee. This allows you to retain maximum control over the trust assets during your lifetime. But there may come a time when you are no longer physically or mentally capable of administering the trust yourself. This is why your trust should always contain a disability clause that provides a clear method for determining when and how you may be removed in favor of a successor trustee.

Father’s “Disability Panel” Conflicts With New Wife

A disability clause may be especially helpful in cases where the person making the trust is under the undue influence of someone else. A recent case from here in San Diego offers a useful illustration of this point. This case involves a still-living man who created a trust in 1998, which he revised in 2008. Under the 2008 revision, the man appointed his three children and one of their spouses as a “disability panel” to make a “final, binding, and controlling” determination should he become disabled and unable to continue as trustee. If and when the disability panel made such a finding, one of the man’s sons would take over as successor trustee.

Published on: March 5, 2016

What is the Best Way to Leave Money to a Child?

by Scott C. Soady

If you plan to leave money or other assets to a minor as part of your estate plan, you need to consider how such a gift will be administered. Minors—that is, anyone under the age of 18—generally cannot manage their own funds. Under California probate law, a court may appoint a guardian for the minor’s estate, which may include a gift left to him or her under someone else’s estate plan. But there are other alternatives to consider.

The California Uniform Transfer to Minors Act

Let us say you want to leave your niece, who is currently six years old, a gift of $10,000 in your will. Assuming you die before she turns 18, your will can specify this gift will be made to her father (your brother) under the California Uniform Transfer to Minors Act (CUTMA). This is a law that basically allows you to make a gift to a minor through an adult “custodian.” So in this scenario, your estate would give the $10,000 gift to your brother, who would serve as custodian of the funds for your niece. The custodian is largely free to invest and manage the money as he sees fit, provided he must turn whatever funds there are to the minor when she reaches the age of 18.

Published on: March 4, 2016

How Does a Prenup Affect My Estate Planning?

by Scott C. Soady

Many couples sign a prenuptial (or antenuptial) agreement prior to marriage, which specifies the rights of each partner in the event of divorce or death. It is important to treat such agreements as part of your estate planning, as in many cases a prenup may amend or override a spouse’s potential inheritance rights under California law. Once the other partner has died, it is generally too late for the surviving spouse to do anything about it.

Court Finds Wife Waived Community Property, Inheritance Rights

Here is a recent example from a case in Merced County, California. This litigation involves a dispute between the wife of a deceased husband and her stepson (his child from a prior marriage). The husband and wife married in 1990. The day before their wedding the couple signed an antenuptial agreement drafted by the wife’s attorney.

Published on: March 3, 2016

California Conservators May Not Unilaterally Cut Off Family’s Access

by Scott C. Soady

In California, like all states, a probate court may appoint a conservator to act on behalf of a people who are unable to care for themselves or their property. Once appointed, a conservator has broad power to provide for the “care, custody, control, and education” of the person under the conservatorship (the conservatee). But the California legislature recently clarified the conservator’s powers, and the conservatee’s rights, in one important area.

Legislature Clarifies Right to Visitation

The legislature was concerned that conservators may try to cut off a conservatee’s access to family or other loved ones. In a report, a California Assembly committee noted that as “divorce and remarriage become more prevalent in today’s society, there is a greater possibility of conflicts between a second spouse and children from a first marriage.” In such cases, a second spouse who is named conservator of the other spouse may ban the children from visiting or communicating with their parent.