San Diego Estate Planning Lawyer Blog

Published on: January 23, 2016

Using a Trust to Provide for Your Family and Charity

Estate planning and tax planning often go hand in hand. There are many estate planning devices which allow you to (legally) obtain tax benefits. One example is a charitable remainder trust, which is a special type of estate planning trust that can provide an immediate tax benefit for you while guaranteeing future income for your family and, ultimately, a favorite charity.

The Basics of a Charitable Remainder Trust

In any trust you transfer assets to a trustee. Most estate planning trusts are revocable, meaning you can amend or even revoke the trust outright at any point during your lifetime. But some estate planning trusts must be irrevocable—that is, you must surrender all control over the assets to the trustee—in order to receive certain tax benefits. A charitable remainder trust is such an irrevocable trust.

Published on: January 22, 2016

Apple Reportedly Demands Court Order Before Releasing Deceased User’s Password

by Scott C. Soady

You might think the most difficult part of estate planning would be figuring out how to transfer title to your house or administering a living trust. But for a British Columbia widow, one of the biggest hassles she faced following her husband’s death was gaining access to his Apple account. The California-based technology giant reportedly demanded a court order before it would release the password to the couple’s joint online account.

According to report from the Canadian Broadcasting Company, the widow noticed a game had stopped working on her iPad. It turned out she needed to login to her Apple account, but her husband was the only one who knew the password. The widow’s daughter contacted Apple, but she said customer support gave her the runaround. Nearly two months later, after providing copies of the husband’s death certificate and other personal identifying information, the daughter said Apple told her she needed to get a court order. The family declined to do so due to the cost, but the family told their story to the CBC, Apple acknowledged there was a “misunderstanding” and promised to resolve the issue.

Taking Inventory of Your Digital Assets

Published on: January 14, 2016

How Should I Deal with Copyrights, Patents, and Trademarks in My Estate Plan?

by Scott C. Soady

Your estate plan is designed to dispose of any property you own at the time of your death. Property can include not just financial assets, real estate, and tangible items, but also the legal rights to certain works you have created or invented. These intellectual property rights can be quite valuable, which is why it is important to include them in your will or trust.

How Intellectual Property Works

There are three broad categories of intellectual property protected under federal law: copyrights, patents, and trademarks. Each follows different rules and can impact your estate planning in varying ways.

Published on: January 13, 2016

California Courts Continue to Deal with Same-Sex Estate Planning Issues

by Scott C. Soady

Although same-sex marriage has been legal in California since 2013, there remain a number of unresolved estate planning issues with respect to the rights of spouses in such relationships. For example, there are cases where the courts must still determine when a same-sex couple was legally married for purposes of determining entitlement to certain retirement benefits. A recent decision by a federal judge in Oakland illustrates how courts are dealing with such questions.

Widow May Pursue Pension Claim Against Spouse’s Employer

This case centers on the pension plan of a woman who passed away on June 20, 2013. This date is important because six days later the U.S. Supreme Court issued two decisions: The first held that the Defense of Marriage Act, a federal law restricting the definition of marriage to opposite-sex couples, was unconstitutional; the second decision overturned an initiative previously approved by California voters which similarly banned same-sex marriage.

Published on: January 6, 2016

Could Someone Get Away with Forging My Signature on a Will?

by Scott C. Soady

Estate planning is important because it ensures you get to decide who inherits your property. Unfortunately, there are individuals who may take advantage of your death to wrongly claim your property for themselves. In some cases, people have gone so far as to forge a will in order to seize control of an estate.

Woman Sentenced to Two Years for Forging Landlord’s Will

Recently, a California appeals court upheld the conviction and two-year prison sentence of a woman convicted of will forgery. The case arose from the 2010 death of a 63-year-old woman living in the Tujunga neighborhood of Los Angeles. The defendant was renting an apartment in the deceased woman’s home. When the decedent’s brother came to the house and asked about her sister’s “final wishes,” the defendant claimed she was the sole beneficiary of the estate. To that end, the defendant filed a petition in California court to probate a will purportedly signed by the decedent in the presence of two witnesses.

Published on: January 5, 2016

Dealing With Non-California Property in a California Trust

by Scott C. Soady

Estate planning is especially important when you own property in more than one state. Although your will is generally subject to the law of the state in which you reside at the time of your death, there may be a need to open an additional (or “ancillary”) estate in any other state where you own real estate or other property outside of California’s jurisdiction. In some cases, your estate may be liable for another state’s taxes.

Brothers Fight Over Nebraska Property in California Court

Here is a recent example. A California husband and wife created a living trust and transferred all of their property into it, including two pieces of farmland in Nebraska that the wife’s family had owned for more than a century. According to the terms of the trust, after the couple died, the trust’s assets were to be equally divided between their two children. The trust also required a division of the trust into “A” and “B” subtrusts after the first spouse died. This is a common estate planning tool used to keep the surviving spouse’s property in trusts separate and apart from the deceased spouse’s property.

Published on: January 2, 2016

Alleged Will Forgery Highlights Risks of Ignoring Estate Planning

by Scott C. Soady

You may not think having a last will and testament is important. But consider the possibility that if you do not make a will, someone else might create one in your name. While not common, will forgery does occur, and the internet makes it easier than ever for someone to present a fraudulent document to a probate court.

Arkansas Realtor Accused of Defrauding Estate of Deepwater Horizon Victim

Recently a federal grand jury in Arkansas indicted a woman for numerous criminal offenses arising from an alleged will forgery. The woman is also facing a civil lawsuit from the legitimate heirs of the deceased individual’s estate. Please note these lawsuits are merely allegations and have not yet been proven in a court of law.

Published on: December 31, 2015

Sale of “Soul Train” Host’s Home Leads to Estate Planning Nightmare

by Scott C. Soady

An important part of the estate planning process is taking inventory of what you own. If you own or operate a business, for example, you need to make sure it is clear which assets belong to the business and which belong to you as an individual. If you create a revocable living trust as part of your estate plan, it is imperative that any assets you move into the trust are properly re-titled in the name of the trustee.

If you fail to take these steps when creating your estate plan, there may be unnecessary delays or litigation involving your trust and estate. This can not only deplete any assets you wish to leave to your heirs, it can also place the people charged with carrying out your estate plan in danger of being held personally responsible if something goes wrong. A recent California case illustrates one such scenario.

Disputed Ownership, Boundaries May Leave Trustees Liable

Published on: December 29, 2015

Elder Financial Abuse May Compromise Estate Planning

by Scott C. Soady

Elder financial abuse is a serious problem that affects many California residents. Caregivers may take advantage of an elderly relative or friend in an attempt to unduly influence their estate planning. In order to help protect the elderly, California law imposes a legal presumption that any gift made under a will or trust from an a “dependent adult” to a “care custodian” is the “product of undue influence or fraud” and therefore legally invalid. This is only a presumption, that can be “rebutted by proving, by clear and convincing evidence” there was no fraud or undue influence.

The presumption of undue influence frequently arises in cases where an elderly individual makes a seemingly last-minute change to a will or trust naming their caregiver, or a relative of the caregiver, as a principal beneficiary. While there may be cases where such gifts legitimately reflect an elderly person’s gratitude for services rendered, the presumption of undue influence must still be rebutted in order to ensure an unscrupulous caregiver is not simply taking advantage of the situation. A recent California appeals court decision helps illustrate this principle.

Jury Disbelieves Caregiver’s Account of “Finding” Amended Trust

Published on: December 17, 2015

How Can Estate Planning Affect My Children’s Property Tax Bill?

by Scott C. Soady

Estate planning has many tax implications. Even if you do not have an estate large enough to incur a federal estate tax bill—and that will be most of us—there are other tax issues to consider. For example, what happens to the taxable value of your house if you leave it to your children through a will or trust?

In California, property taxes are based on the assessed value of property rather than its market value. This is generally a good thing if you have owned your home a long time. Say you bought your house in 1995 for $100,000. Under California law, the assessed value may only increase 2% per year. This means the assessed value in 2015 would only be about $145,000. Meanwhile, the market value of the house if you sold it would likely be significantly higher.

When you sell or transfer a house, the assessed value resets for the new owner. So if you sell your house for $500,000, that is the new assessed value. But California law makes an exception when parents sell or transfer their homes to a child. Under this Parent-Child Exclusion, the assessed value does not reset when the child acquires the property. This means if you leave your home to a child in your will or trust, he or she will not have to pay higher property taxes than you did.