San Diego Estate Planning Lawyer Blog

Published on: October 8, 2008

Can Children Born After Their Parent’s Death Inherit?

San Diego, like many other large cities is on the cutting edge of technology and has a number of sperm banks, egg banks, and cryopreservation companies for storage of reproductive material. With the advent of techniques such as invitro fertilization and cryopreservation of sperm, eggs, and embryos, children may be born many years after the death of a parent raising a variety of legal issues.

A child that is born after the death of one or both parents is referred to as a “posthumous” child. The law in California recognizes children born posthumously by specifically providing in the California Probate Code Section 248 – 249.8 that such children have the same inheritance rights as children born before the death of their parent.

The new reproductive technologies can potentially create a number of other problems. An example is whether a child born from frozen sperm or embryos can qualify for social security benefits. A U.S. Court of Appeals for the Ninth District has said they do get social security benefits. As modern technology evolves, the law is going to have to address these and undoubtedly other issues.

Published on: October 7, 2008

San Diego County: Bicycle Safety

by Scott C. Soady

In San Diego, the San Diego County Bicycle Coalition has many different tips and advice to help riders. There is also a You Tube website which has information from the NHTSA on bicycle safety. At our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP we advocate bicycle safety. If you are injured in a bicycle accident in San Diego County, please e mail or call our firm for a complimentary consultation.

When a car or truck has a collision with a bicycle, the bicycle rider usually loses, no matter who legally had the right of way. Bicycle riders should take extra care to obey the following safety tips:

Remember: Bikes Are Vehicles, Too

Published on: October 6, 2008

How do you hold title to Real Property?

by Scott C. Soady

When you purchase property in San Diego County, you will have to specify how you are going to hold title. Title is the evidence that you are the owner. The form of ownership is called “vesting”. The escrow company will ask you how you want to hold title so the deed to your new property can be prepared. Here are some of the more common forms of holding title.

Sole Ownership

When you hold title as the sole owner, you own the entire interest. Usually sole ownership is for single individuals. A man or woman who has not been married may hold title as “John Doe, a single man.” A man or woman who was previously married but legally divorced might hold title as “Jane Doe, an unmarried woman.” If you are married and want to take title in your name alone, your spouse must relinquish all interest in the property since real property conveyed to a married couple in California is presumed to be community unless otherwise stated. Title in that case might read “John Doe, a married man, as his sole and separate property.”

Published on: October 2, 2008

Children’s Trusts for San Diego Children

by Scott C. Soady

If you die with a will or intestate (without a will), the probate court has no discretion to withhold money from your legal heirs if they are 18. There are many 18 year olds who are not capable of managing significant amounts of money at that age. One way to insure that your children do not receive distributions from your estate at such a young age is to create a children’s trust or build one into your own revocable living trust. In either case you can be creative as to when your children receive distributions and for what purposes.

A trust can structure your child’s inheritance by making specific provisions for the use of trust assets. As an example you may provide that upon your death, a family member will be the successor trustee who will use the trust assets for the “health, education, maintenance, and welfare” of the child. Will that include money for vocational training or starting a business? Will the trustee have the discretion to buy a car for the child to go to work or school? These are some issues your trust provisions can address.

What about distributions when the child becomes an adult? You can specify in the trust that distributions be made at age 25, 30, or 35 or any other intervals you wish. You can specify that a distribution be made upon graduation from college, or that there is to be no distribution at all until the child turns 35 or 40.

Published on: September 30, 2008

Be Careful What You Click!

by Scott C. Soady

It can happen in a second!. You click your mouse on a website and all sorts of things can happen. Because of the high tech nature of the internet, you can shop from your home computer in San Diego and purchase a product from anywhere in the U.S., China, Australia, or India any time of the day or night. Not only could you be downloading spyware and viruses into your computer, but you could be committing yourself to a legally binding contract.

A Texas online purchaser used her daughter-in-law’s credit card to order some automobile seat covers and have them delivered to the daughter-in-law in Alabama. When they were delivered, it was discovered that the covers were the wrong color. The daughter-in-law sent them back to the company and reversed the charge on her credit card. The company claimed that it never received the seat covers, and eventually sued the purchaser and the daughter-in-law for breach of contract.

The lawsuit against the customers was bad enough but adding to the problem was the fact that the action was filed in a state court in Indiana, far from either of the defendants’ homes. The defendants’ attempt to avoid having to defend the suit in Indiana failed. The “clickwrap” agreement that the customer had accepted with a click of the mouse when she purchased the items included a requirement that any legal proceeding between the purchaser and seller had to be filed in Indiana and governed by Indiana law.

Published on: September 26, 2008

Is Your Money Deposited in San Diego Banks Safe?

by Scott C. Soady

With everything happening in today’s economy, people have many questions about whether their money is safe in such banks as Bank of America, Washington Mutual, Union Bank, and many other banks in San Diego. The recent failures of IndyMac, Freddie Mac, and the insurance giant AIG has caused many bank depositors to ask about the protections of an FDIC insured institution.

The FDIC (Federal Deposit Insurance Corporation) was established 75 years ago. All deposits worth $100,000 or less are automatically insured by the FDIC if the bank in which the funds are deposited are insured with the FDIC. Many retirement accounts such as 401(k)s and IRAs are insured up to $250,000 per person. If you have a joint account with someone else, that account is insured separately from the account you have in your name alone. In addition, trust accounts may be protected up to $100,000 per beneficiary.

The FDIC has nearly $53 billion in funds and in the 75 years since its creation, there has never been a bank depositor lose a penny. You can learn more about bank failures at the

Published on: September 23, 2008

Innovative Idea for Dividing Up Personal Property after Death

by Scott C. Soady

Are you the Executor or the Successor Trustee of a will or trust in San Diego? Are you faced with the dilemma of how to divide up personal effects of the deceased? How to divide personal property (furniture, collectibles, jewelry, cars) upon someone’s death can be a harder problem than distributing the rest of the estate. Many wills and trusts provide for distribution to heirs in equal amounts or equal shares, but how do you determine who gets what? What if more than one heir wants a particular item? How is the property valued, especially if its real worth is more sentimental than anything else?

There is an interesting alternative being offered by an auction company called eDivvyUp. This is an online auction site which can assist executors or beneficiaries deal with distribution of personal property. This company will inventory the items of personal property, photograph them, and then the beneficiaries are invited to participate in the auction with “points” they are assigned. At the end of the auction the property is distributed to the highest bidder.

At Law Office of Scott C. Soady, A Professional Corporation we can assist you with the division of personal property and any other matter relating to probate or trust administration. You may call or e mail us to set up a complimentary consultation.

Published on: September 19, 2008

Interesting Statistics on Estate Planning

by Scott C. Soady

Do San Diegans fit the national statistics on Estate Planning?

Alhough there are no statistics specifically for San Diego County, a study done nationally in 2007 found that over half (55% ) of all adult Americans do not have a will or other estate plan. Of non-whites, the lack of a will is even more pronounced:

Only 32% of African American adults have wills Only 25% of Hispanic American adults have wills compared to 52% of white American adults.

Published on: September 15, 2008

Amending your Revocable Living Trust

by Scott C. Soady

After your revocable living trust is prepared, there often arises the need to amend your trust. It could be that you want to change your successor trustee, change beneficiaries, or that new changes in the tax laws require some new or revised provisions. Some people think they can cross out information on their trust and make changes on the original trust document. This should never be done as the changes are not notarized and it may be difficult to prove that you were the one making the changes. An amendment to your trust should be prepared and notarized with the same formalities as your original trust.

You may also want to have an estate planning attorney review your trust to see if an amendment is appropriate. Some trusts become irrevocable after the death of the first spouse and depending on the trust language, may not be amended.

At Law Office of Scott C. Soady, A Professional Corporation, we can advise you as to whether your trust may be amended and with the preparation of amendments. We offer a complimentary consultation and you may call or e mail us for an appointment.

Published on: September 10, 2008

Even Celebrities Don’t Anticipate the Future!

by Scott C. Soady

There are numerous examples of famous people who have died without a will or who had an outdated will or a poorly drafted trust. Some of these examples have resulted in disastrous consequences after an untimely death. Anna Nicole Smith died leaving everything to her son who predeceased her and apparently had no provision for later born children or for her long time partner Howard Stern. Heath Ledger died with an outdated will that left his estate to his parents and sisters with no mention of his daughter or girlfriend Michelle Williams, the mother of his daughter.

It is doubtful that these celebrities intended for these consequences to occur if they died suddenly. They certainly had the ability to retain the best estate planning attorneys in the country. While some blame has to rest with the individuals themselves for not updating their wills to provide for partners and children born after their wills were prepared, it seems apparent that the original documents which were prepared failed to anticipate future events. Since properly worded documents were not prepared to anticipate the future, these celebrities were deprived of the ability to decide such things are how their children would inherit assets, who would be in charge of the money during the time they were minors, who would invest the money, or who they would have preferred to care for their children if both parents died.

Just like these celebrities, you need an experienced estate planning attorney that will determine the appropriate estate plan for you and draft documents that will stand the test of time. Such documents need to remain effective if you have another child in years to come, if a child predeceases you, or there is a common disaster that may involve your entire family. At the law firm of Law Office of Scott C. Soady, A Professional Corporation we can assist you with an estate plan that will anticipate future events in your life and remain viable for many years after its execution. Call us or e mail us to take advantage of a complimentary and personal consultation about this or any other estate planning issue.