San Diego Estate Planning Lawyer Blog

Published on: July 4, 2008

Charitable Giving can only be done with an Estate Plan

There are many people in San Diego that want to support the charities and causes they care about. If you want to leave a legacy after you pass away and want to give money, property, or other assets to charitable organizations, you need to have an estate plan which includes charitable giving.

A recent example in San Diego occurred when a woman died without a will or trust. She was very active in the community and handicapped herself, always intended to leave her handicapped accessible home to an appropriate charity that would see that the home was utilized by persons with disabilities. She never got around to consulting an estate planning lawyer to make a will or trust. Having died without an estate plan, her home will have to go through probate with the rest of her assets and her heirs will sell the home and distribute the proceeds. Her dream to leave her home to charity will not be realized.

The lessons of this example are twofold: 1. Don’t postpone making an estate plan, especially if you wish to give something to charity. 2. If you do want to leave assets to a charitable organization, specify your wishes in a will or trust. You can make a specific charitable bequest of cash or property. You can also create a charitable remainder trust, or a charitable lead trust. You can read about the various ways you can accomplish charitable giving on our website. At Law Office of Scott C. Soady, A Professional Corporation, we can assist you with an estate plan that will include the charities and causes that are important to you. Call us or e mail us for a personal, confidential, and complimentary consultation.

Published on: July 2, 2008

How Will the Presidential Election Affect the Federal Estate Tax Exemption for Citizens of San Diego?

by Scott C. Soady

In San Diego the cost of housing is one of the highest in the nation. For many of us, our home is the primary asset in our estate. One of the issues in the upcoming presidential campaign is the repeal or modification of the federal estate tax exemption. The outcome of the election may have an effect on whether your estate will be subject to estate taxes. As discussed below however, regardless of the election, you should not postpone creating an estate plan, the central document of which would be a revocable living trust.

The Estate Tax, often called the death tax, is a tax on the estates of the deceased in the United States. Tax-cut legislation enacted in 2001 provided for 10 years of increasing exemptions. Current law is that those with taxable estates over $2 million will be subject to estate taxes. If the estate is more then $2 million, the remainder is taxed at 45%. In 2009 an estate over $3.5 million will be taxed. Unless Congress acts to repeal or change the current law, the tax will be completely eliminated in 2010 but will be reinstated in 2011 to tax estates over $1 million with a top rate of 55%.

The repeal or elimination of this tax entirely has been suggested by many fiscal conservatives, primarily Republicans. Where do the Presidential candidates in the upcoming election stand?

Published on: June 30, 2008

North San Diego County – Have you designated a guardian for your minor children?

by Scott C. Soady

Unfortunately, it occasionally happens that both parents of a minor child die in a common event or accident. If both parents die without an estate plan, a probate judge will have to appoint a guardian. A guardian is responsible for taking care of their “ward” until the child turns 18. This includes such things as housing, food, medical bills, clothing, education, and other incidental expenses. Having the Probate Court choose a guardian for your children may not always result in a guardian that you would have selected.

If the parents have a will or trust designating a legal guardian for their children, the children will be taken care of. A will or a trust allows you to have a say in who takes care of your child upon your death. You are in the best position to know who that individual is. Who is best able to provide a stable and nurturing home for your child – your brother, sister, grandparent, a close friend?

Factors you should consider are:

Published on: June 25, 2008

Who Gets Grandma’s Ring in Rancho Sante Fe?

by Scott C. Soady

Estates are comprised of many different assets including homes, bank accounts [Bank of America, Union Bank and others], life insurance [Farmers, State Farm and others], and personal property such as jewelry, artwork, cars, and boats. Sometimes what causes the most squabbles among family members after a death is not the real property or cash but such things as jewelry, collectibles, or other items of strictly sentimental value such as grandma’s ring or grandpa’s gun.

Unless you have left specific instructions as to your personal property in your will or trust, usually it will be divided equally among your beneficiaries. But what is equally? How do you value a family heirloom? As an example, Rosa Parks (who you may remember started the civil rights movement in 1955 when she refused to surrender her seat on a bus to a white rider) had in her estate china that was used when she dined with then President Clinton. How does one determine the value of that particular piece of Wedgwood china? What about Grandma’s ring? Something that may be priceless to a beneficiary because of its sentimental value may be worthless in terms of its appraised value. What if two or more beneficiaries want the same item and won’t budge?

If you have specific items of personal property that you want to give to particular people upon your death, you can make specific bequests in your will or trust. Usually however, people have too many items of personal property to list them all in their will or trust. Or they may acquire other personal property after they execute their will or trust or want to change their mind at some point about certain gifts.

Published on: June 20, 2008

Probate: Same Sex Spouses

by Scott C. Soady

In San Diego, many opposite sex and same sex couples have been married since the week of June 16, 2008. The California Supreme Court has issued a Writ of Mandamus to the California State Officials to not deny the issuance of marriage license based upon the sex of the betrothed. As such, there are now same sex spouses in California and these marriage are legal as of today and, as all know, there is a proposal for an initiative on the November, 2008 Ballot for same sex marriages to be unconstitutional. Whether the marriages are ultimately held valid or void, it is possible that a same sex spouse married in June of 2008 who passes away before the November elections, would have their estate treated the same as opposite sex spouses which would involve probate if there was not a revocable living trust.

In San Diego, there are two court houses for probate cases: San Diego and Vista. Our law office of Law Office of Scott C. Soady, A Professional Corporation, LLP would be pleased to offer a complimentary and confidential consultation to both same sex and opposite sex spouses for representation in probate or for the preparation of a revocable living trust. Please feel free to e mail or call us to set up an appointment.

Published on: June 19, 2008

Parents of high school graduates in San Diego – is your child now 18?

by Scott C. Soady

If your child is now 18, there is valuable information for you and your now “adult” child available for free. There is a publication entitled “When You Become 18: A Survival guide for Teenagers” published by The State Bar of California. This pamphlet can be ordered in print form or downloaded from the bar website and answers such questions as what happens if my 18 year old commits a crime? As parents, are we responsible if our 18 year old injures someone with the family car?

One document every adult child should have is an Advance Health Care Directive to appoint someone to make health care decisions in the event of an incapacity. Once a child turns 18, the parents can’t make medical decisions for their child. If the parents are divorced or separated and disagree on medical treatment, how is it resolved?

Similar to the Terry Schiavo case, there recently was reported the story of a 25 year old single woman who was brain damaged as a result of a dirt bike accident. She had no living will or power of attorney for heath care. Her divorced parents are arguing over a DNR order (do not resusitate order) signed by her mother and whether the mother or the father should be appointed her temporary guardian to make those end of live decisions.

Published on: June 18, 2008

Wills: Same Sex Spouses

by Scott C. Soady

In California, the law regarding limitations on marriage to members of the opposite sex changed and now spouses of both same sex and opposite sex can have wills which are recognized in exactly the same manner under the laws in San Diego and throughout Southern and Northern California. A will is normally part of an estate plan which may or may not include a revocable living trust. In San Diego, if the total value of the estate is over $100,000 [real and personal property included with no offset for debt] then a revocable living trust will save the beneficiaries money in not having to probate the estate. Probate fees and costs are 4% of the first $100,000, 3% of the second $100,000 and 2% of each succeeding $100,000. In addition, probate is a court procedure which is open to the public and information is not private. There are two probate courts in San Diego: one in San Diego and one in Vista.

The California Supreme Court has made its intentions clear in the recent Marriage cases that there is to be no discrimination based upin sexual orientation or same gender spouses. Our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP would be pleased to offer same sex spouses the same estate planning services as opposite sex spouses under this new ruling. Please feel free to e mail or call our firm for a complimentary and confidential consultation.

Published on: June 17, 2008

San Diego: Same Sex Estate Planning

by Scott C. Soady

In San Diego, the law changed on June 16, 2008 in regards to marriage ceremony and the issuing of State of California marriage licenses to same sex couples. The law which applied to opposite sex couples is unchanged. In San Diego, both same sex and opposite sex couples will go to the San Diego Superior Court for their marriage.

A recent California Supreme Court Case has taken effect and issues a Writ of Mandamus for all California State officials to perform marriages in accordance with the new ruling which does not define marriage as between a “man and woman”.

As such, our law firm of Law Office of Scott C. Soady, A Professional Corporation, LLP is offering the same estate planning services for same sex spouses as for opposite sex spouses. No attorney can guarantee that the state of the law will remain the same. In fact, already there is the proposal for an amendment to the California State Constitution to make same sex marriages unconstitutional.

Published on: June 12, 2008

San Diego: Pet Protection: Will or Trust?

by Scott C. Soady

San Diegans, have you provided for your pet in your will or trust? Our firm can assist and please feel free to e mail us. Please review our article regarding pets on our website.

You may remember last year when hotel and real estate magnate Leona Hemsley died, leaving 12 million dollars to her dog, a white Maltese named Trouble. You can view the story of her extraordinary gift in the Washington Post Newspaper. She apparently left two of her grandchildren nothing ‘for reasons known to them” but left millions to her beloved pet.

While the amount may have been extraordinary, it is becoming more commonplace for pet owners to provide for their pets in their will or trust. Even people of modest estates may set aside a certain sum of money to see that their pet is taken care of. $500 to $5000 may not be unrealistic for care of a beloved dog, cat, or horse. Horses may require even more money to maintain as they can often outlive their owners. It is not uncommon for horses to live to be 20 – 30 years old. Expenses for caring for a horse can be as much as $ 5000 – 10,000 per year for such items as food, boarding, vet care, and farrier services.

Published on: June 11, 2008

San Diego: Help for Families Dealing with Dementia or Alzheimer’s

by Scott C. Soady

In San Diego and elsewhere, more and more Americans are suffering from Alzheimer’s, dementia, or other diseases that cause them to become unable to take care of themselves. It is estimated that 1 in 7 Americans over the age of 70 suffer from some sort of dementia.

We are all living longer and as the elderly population grows in the United States, the incidence of dementia and Alzheimers will be increasing. By the year 2050, it is estimated that between 11 and 16 million Americans will have Alzheimer’s disease. Planning for the future needs of such people becomes increasingly important.

When your loved one has been diagnosed with dementia or Alzheimers, family members need to plan for the future. If the disease is still in its early stages, the individual may still have the mental capacity to execute documents such as a Durable Power of Attorney for Finances and an Advance Health Care Directive. If the individual already has a will or trust, these may need to be amended. In addition, long term strategies may have to be considered for such things as in-home care, assisted living, or nursing home placement.