San Diego Estate Planning Lawyer Blog

Published on: February 12, 2010

Marriage over the Internet?

Recently we had a post on our estate planning blog about electronic wills, now only recognized by the state of Utah. What about electronic marriage?

Two law professors at Michigan State University are advocating e-marriage. Their suggestion arose out of a situation where a Marine Sgt. met a Japanese woman in Japan. She became pregnant and he was sent to Iraq. The two wanted to find a way to get married so they had a proxy marriage (recognized in some states where the couple are not in the same location). Then unfortunately, the Marine was killed in Iraq, causing estate planning issues and immigration problems for his widow and son.

The two law professors propose e-marriage as a convenient and flexible way for couples to marry that are separated by distance. With the help of the Internet couples could get married without being physically present together. There would have to be safeguards against identity fraud and the law professors acknowledge that an e-marriage, depending on state law, may not carry with it the same legal rights as the usual marriage. Obviously many groups see this as an erosion of traditional marriage and would oppose such a plan.

Published on: February 8, 2010

Pets Have a Beneficial Effect on Health

by Scott C. Soady

Pets are a large part of our daily life. Pets can provide relief from stress, companionship, and an opportunity to get some exercise and socialization. Pets also can have a beneficial effect on our health in other ways.

A study at the State University of Buffalo showed that people with high blood pressure who adopted a dog had lower blood pressure readings in stressful situations than those without a dog. In another study of hypertensive stockbrokers, those who got cats or dogs were found to have lower blood pressure than whose who didn’t.

A study in Australia found that pet owners also have lower cholesterol levels than people without pets.

Published on: February 3, 2010

A Family Allowance to be Given to Joe Jackson?

by Scott C. Soady

A family allowance is a amount of money which the Probate Court can order the estate of a decedent to pay to persons who the decedent was obligated to support or who the decedent was in fact supporting at the time of his death. Priority goes to family members such as a surviving spouse or minor children but parents and brothers and sisters can also request an allowance if they were supported in whole or part by the decedent. The family allowance must be reasonable in amount and is in the discretion of the judge based on the circumstances. The allowance, once ordered, continues until there is a final distribution of the estate or by further court order.

An unusual situation has arisen in the case of Michael Jackson’ estate. Joe Jackson, the father of Michael Jackson, is seeking a family allowance in excess of $15,000 per month, claiming that he was dependent on his son for support. Michael did not provide for his father in his will or trust. The father and son had been estranged for years and Michael had stated he did not want his father to receive any part of his estate. Michael apparently was not supporting his father in the sense of writing him checks.

Jackson filed a petition in the Los Angeles Probate Court claiming his only income is $1770 from social security and his expenses exceed $15,000 per month. The Court has already ordered family allowances for Michael’s children and mother. An evidentiary hearing will be he held in May, 2010. It will be interesting to see if the LA court orders an allowance on the theory that Michael supported his mother and she apparently gave some of that money to the father. As with many issues surrounding the singer’s death, stay tuned.

Published on: January 30, 2010

Interesting New Twists on Creating Wills & Trusts

by Scott C. Soady

Modern technology has altered many things in our society. Can technology improve the area of estate planning? How about an electronic or video will or trust? A client recently contacted our office to ask if he could videotape his father who was in failing health explaining orally how he wanted his assets to be distributed after his death and would that be honored as a will. The short answer is no.

A video will is created when the testator reads his will or states his wishes in front of a video camera. A video will is not recognized as a valid will in any state. A video will can be helpful where there might arise a question later as to the testator’s capacity however it cannot act as a replacement for a written will signed in the presence of witnesses. If it is going to be used, it should be as a helpful addition to your estate plan, not a replacement for a written will or trust. Use of a video will should probably only be done upon the advice of an experienced estate planning lawyer so that it is done correctly and doesn’t cause more problems that it solves.

What about an electronic will? Nevada is the only state that recognizes electronic wills. The Nevada statute requires that the electronic will must contain the date and the testator’s electronic signature which could be a signature by fax, typing a name at the end of an e-mail, or including a personal identification number. In addition the will must include at least one authentication characteristic of the testator, which could be a digitized signature, voice recognition, fingerprint, retinal scan, or other type of authentication. The statute also requires that the electronic record containing the will be created and stored in a manner such that there is only one authoritative copy of the will in existence.

Published on: January 26, 2010

Uncertainty about the Estate Tax May Require Trust Review

by Scott C. Soady

For now, there is no estate tax in 2010. Everyone expected Congress to address the estate tax issue in 2009 but it did not happen. The House passed a bill that would have permanently kept the 2009 exemption but the Senate failed to vote on the estate tax issue leaving everyone wondering if they will respond during the next session. Without a law passed by Congress, the estate tax will re-appear in 2011 with a reduced exemption from 2009’s $3.5 million to $1 million.

If Congress does enact an estate tax law sometime in 2010, will it be retroactive to January 1, 2010? Would a retroactive law be constitutional? No doubt there will some decedent who dies between January 1, 2010 and the date of the law who has an estate subject to estate taxes. The heirs or beneficiaries of such an individual would certainly litigate the retroactivity issue.

The uncertainty may cause some people to consider review their existing plans to determine the effect of the repeal in 2010 and the effect of a much lower federal estate tax exemption in 2011. Particularly individuals who have taxable estates and bypass or exemption trusts should get a review of their current trust to see if the repeal would have unintended consequences should they pass away. Many trusts have language referring to the federal estate tax exemption to allocate assets among different beneficiaries. Depending on how the trusts are set up, the repeal of the estate tax entirely could have unintended results such as disinheriting a child from a previous marriage or disinheriting a spouse from a second marriage.

Published on: January 23, 2010

Can an Irrevocable Trust be Changed?

by Scott C. Soady

An irrevocable trust is one that usually cannot be revoked, modified or amended. Trusts can become irrevocable in several ways. Some are created to be irrevocable at the time they are created. An example of this type of irrevocable trust is a Irrevocable Life Insurance Trust (ILIT). This is a type of trust that is created to hold life insurance and pass the death benefit from such policies to the beneficiaries of the trust without incurring any income or estate taxes on the transfer. Such a trust cannot be revoked, changed, or amended after it is created except by court order.

Some trusts for married couples become irrevocable upon the death of the first spouse. A typical example is an A/B trust, sometimes called a Bypass Trust or Exemption Trust. With this type of trust, the Deceased Spouse’s Trust becomes irrevocable after the first death and cannot be changed, amended, or revoked.

Other trusts which can be irrevocable are certain types of charitable trusts and a Qualified Personal Residence Trust (QPRT)There are some instances however, where a trust which is irrevocable can be modified by court order. Civil Code Section 3399 permits a contract (which a trust is) to be reformed when the writing, through mistake or fraud, fails to express the intent of the parties. Reforming a trust might be appropriate when due to a drafting error or scrivener’s error, the intent of the individuals creating the trust has not been fulfilled.

Published on: January 19, 2010

Decisions for Retirees Approaching Their Sixties

by Scott C. Soady

As many people approach their sixties, they begin wondering at what age they should start taking social security. It can be a confusing decision.

Center for Retirement Research at Boston College has a good link to download the Social Security Claiming Guide. This document has all the information you need to determine when you should begin taking social security. There are a number of factors to consider including how much you need in retirement income, your age, if married what your options are to take your spouse’s social security, etc.

Decisions also have to mde about Medicare. For information on Medicare, see this site which will link you to the Medicare website as well as other sites for Medicare information.

Published on: January 12, 2010

Trial Begins on Constitutionality of Proposition 8

by Scott C. Soady

The first federal trial to determine if the Constitution allows states to ban same sex marriage began this week in the U.S. District court in San Francisco. The trial, which is supposed to last 2-3 weeks, involves a challenge to Proposition 8 which was passed by 52% of the voters in 2008. Prop 8 reinstated the ban on same sex marriages after the California Leglislature had voted to permit them. For a discussion on Prop 8 and same sex marriage, read our article on our family law website.

The plaintiffs, two gay couples, contend that there is no rational basis for limiting marriage to a man and a woman. Opponents, the supporters of Prop 8, are arguing that the voters were within their rights to establish that marriages should be limited to heterosexual couples. Testimony in the first few days has centered around historians who are testifying as to how Prop 8 is part of a long tradition of discriminating against gay couples.

Regardless of the outcome, the case will probably find its way to the United States Supreme Court. The ruling will lay the groundwork for the highest court to tackle the issue of same sex marriage. The Supreme Court has already gotten involved to the extent of ruling that the trial could not be broadcast on U-Tube.

Published on: January 8, 2010

Life’s Stages Dictate Different Estate Plans

by Scott C. Soady

As you travel through different stages of your life, you may not require the same estate plan. Estate plans are based in part on the phase of life you are in. An estate plan you created when you were in your 30’s could be very different from the one you need in your 60’s.

1. Young and Single. When you are in your 20’s, all you probably need is a Durable Power of Attorney for Finances and an Advance Health Care Directive. Both of these documents are ones you need if you become incapacitated. If you are single, this probably means that you name your parents to make financial decisions if you are unable to and give them the power to make medical decisions for you in the event of a temporary or permanent incapacity. Once you purchase your first home, however, it is time to create a will or a trust as the centerpiece of your estate plan.

2. Newly Married. Upon your marriage, you will probably want to name your spouse as your agent on your durable power of attorney for finances and your advance health care directive. If you haven’t already, you should also create a revocable living trust and name your spouse as the beneficiary of your 401(k), life insurance policies, pension or retirement plans.

Published on: January 3, 2010

Florida Man Requests No Autopsy or Embalming to Aid Freezing His Body

by Scott C. Soady

You may remember that when famous baseball player Ted Williams died, his body was sent to the Alcor Life Extension cryonics company to be kept frozen until such time as medical advances could bring him back to life. Reportedly Williams’ head is being kept frozen separate from the rest of his body.

Alcor Life Extension Foundation and other cryonics companies store a body in liquid nitrogen at a temperature of minus 196 degrees Celcius in order to preserve the cells and DNA until science enables people to reverse their death. Such a procedure costs upwards of $150,000.

In Tampa Florida recently there was a case of first impression dealing with a similar situation. A 48 year old man who was found dead in his apartment had a medical bracelet on with instructions not to embalm him or to perform an autopsy. Since his death was suspicious, the county medical examiner wanted to perform an autopsy but the autopsy was suspended when a call came from a cryonics company, the same company that houses Ted Williams remains, and requested that the body not be autopsied as that would affect the man’s hopes of someday being brought back to life. Both sides went to court and the judge ruled that the autopsy would be performed and then the body would be released for whatever disposition the family chose. The medical examiner did agree however to try to minimize the dissection of the body to aid in the probability that the body could at some point be restored to life.