San Diego Estate Planning Lawyer Blog

According to a survey by Martindale-Hubbell at lawyers.com, more than half of the people in America do not have a will or a trust. If you do not prepare a will before you die, your estate will have to go through probate. In fact, if you do prepare a will rather than a trust, your estate will have to go through probate.

Probate in San Diego is the legal process of administering a decedent’s estate so that legal title to property can be transferred from the decedent’s estate to his or her beneficiaries. If the decedent has died in San Diego, the estate will be probated in the San Diego courts. In San Diego County, a petition for probate can be filed in the downtown San Diego Probate Court or the North County Probate Court located in Vista.

For most people, becoming an executor of an estate with a will, or becoming an administrator of an estate without a will, is something that requires the assistance of a lawyer. Sometimes people think they can handle a probate without legal counsel, get involved in the process, and then decide that they are in over their head and need legal assistance. Many clients find the process time consuming and confusing. There are many nuances to filing the correct documents with the Probate Court in a timely fashion. If property is owned out of California such as a timeshare, second home, etc., ancillary probate proceedings have to be set up in those states, which complicates the settling of the estate. Sometimes court appearances have to be made which makes some lay people uncomfortable.

The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP help many people through the probate process. It doesn’t matter which lawyer you choose to assist you, the statutory fees are the same, however, what we offer is years of expertise in helping clients through the process; no charge for copies, postage, parking, or mileage; convenient location off the Interstate 15, and helpful friendly support staff that will always return your calls, keep you informed of the status of your case, and answer your questions. Give us a call to set up your complimentary consultation about your probate matter. We also handle will contests, preparation of wills & trusts, and litigation.

Newspapers and magazines are already commenting that Michael Jackson’s estate will be a real nightmare. No one seems to know at this point whether Jackson had a will or a trust. Some people think there is no way he would have failed to provide for his children. In the absence of a will or a trust, his children would inherit the estate equally.

Whether Jackson created an estate plan or not, his estate will have to be settled, either in the probate court, or through trust administration. There are many creditors already lining up to be included. Although Jackson sold millions of records, he reportedly was in serious debt, perhaps as much as $400 million.

One of the assets in his estate that is going to be fascinating is the publishing rights Jackson had to millions of songs. Jackson outbid Sir Paul McCartney for a 50% interest in a music publishing catalog that includes rights to the Beatles hits as well as publishing rights to other hits by major artists, Jackson apparently paid $48 million for the rights, now estimated to be worth $500 million.

Interestingly, since Jackson died in 2009, his estate will have less estate taxes to pay than had he died last year. In 2008, the federal estate tax level for a single person was $2 million. In 2009, it is $3.5 million. However in 2010, the estate tax is scheduled to disappear entirely. For most Americans, it doesn’t matter a great deal, but think of the savings for the rich and famous by dying in 2010!

Part of our estate planning caseload at Pinkerton, Doppelt, & Associates, LLP are cases in which a will or a trust is being questioned or challenged. Typical factual scenarios are where an heir or a beneficiary has been disinherited or their share reduced because of "death bed" changes which may have resulted from undue influence, fraud, or duress. Most wills or trusts contain a clause known as a "no contest clause." "No contest" clauses are commonly found in wills and trusts to discourage someone from challenging the will or trust. Typically, the language is that if anyone contests the will or trust, that individual will take nothing.

Existing law however, allows a beneficiary or other individual to file a petition with the court (called a Safe Harbor petition) asking the court to determine whether a particular challenge fits within the definition of a "contest." If the court rules that it doesn't constitute a contest, then the will or trust can be challenged in spite of the "no contest" clause.

Last Year the California legislature passed a bill which was signed by Governor Schwarzenegger that will change the law regarding "no contest" clauses. Under the new law which will take effect in January 2010, the applicability of the "no contest" clauses will be limited to specific circumstances. The new law will eliminate Safe Harbor petitions and will also provide that a "no contest" clause will only be enforceable to defeat a will or a trust contest if brought without probable cause.

The purpose of the legislation was to permit the free access to justice by allowing such clauses to thwart litigation only in limited circumstances. It remains to be seen whether the new legislation will increase or decrease will contests and trust litigation. If we can assist you with your litigation matter in the probate or trusts area or if you have questions about no contest clauses, please contact us for a complimentary consultation.

What is financial Health? Financial health is the state of your finances. If you have good financial health, you are managing your assets, paying your debts, and saving for retirement. You also are planning for your spouse and children should something happen to you. CNN Money.com. has a nine step approach to test your financial health to see if you are on track to reach your retirement goals despite this economy. The nine steps have to do with saving for retirement, diversifying your investments, staying out of debt, maintaining an emergency fund, etc. Several of the steps involve estate planning.

The fifth step for example asks whether your estate plan is in order. Do you have a document to designate a guardian for your minor children? Have you named beneficiaries for your 401(k)s, IRAs, and insurance policies, and are they up to date? Do you have a durable power of attorney for health care? Have you set up a trust so that your children will not receive an inheritance upon turning 18? These are all important issues that are part of being financially healthy.

The seventh step asks whether you have or will be receiving an inheritance. This is important because inheriting from your parents or others can affect your own estate and require the drafting of a different kind of trust than the one you have. Inheriting a retirement account such as a 401(k) or an IRA can be tricky so you should seek professional advice if you are the beneficiary of one of these. Tax concerns may be another area that should be addressed.

If we can help with getting your estate plan drafted, reviewed, or amended, call us at Pinkerton, Doppelt, & Associates, LLP. We can assist with any of these or other estate planning issues.

You have no doubt watched movies or TV shows where everyone gathers in the lawyer's office, solemn and perhaps anxious about the "reading of the will". The will is then read aloud by the lawyer to all interested parties. It is unknown where this idea came from but it never happens in real life. There is no legal requirement that a will or a trust be read out loud to family members. As a practical matter, family members usually know where their loved one's will or trust is located and it may be several weeks until they even consult with a lawyer about what should be done. At that point, the lawyer may even provide copies to the beneficiaries.

With a will, the will is filed with the Probate Court to start the probate process and once that happens, the will is a matter of public record, open to anyone who wants to view it. That is how the public knows so much about celebrities and their wills.

If you have a trust, the trust which becomes irrevocable at your death, your beneficiaries and heirs are entitled to a copy of the trust but your trust does not become public. Privacy is one of the advantages of a trust over a will.

If you need assistance with determining what needs to be done after the death of a loved one, contact the estate planning attorneys at Pinkerton, Doppelt, & Associates, LLP. We can help with probate or trust administration. Feel free to call us with any question you have about probate, trust administration or any other estate planning question.

Many parents and grandparents don't realize that a child, grandchild, or other beneficiary with a disability complicates an estate plan. If you have such a loved one you want to provide for in your estate plan, you need an appropriate trust even more so than someone without a disabled beneficiary in the picture. Here are some of the points often overlooked in planning for a special needs beneficiary:

Outright distributions to a special needs child or adult will likely make the beneficiary ineligible for continued SSI or Medi-Cal benefits. On the other hand, leaving such a beneficiary out of your will or trust may not be something you feel comfortable with and disinheriting that person could leave the beneficiary with total reliance on such benefits. Sometimes people think they will leave property or assets to another family member with the understanding that he or she will provide for the disabled beneficiary. This approach is unwise as the family member could not follow through ( it happens), die, or run into financial difficulty.

The way around the issue is to create a third party special needs trust as part of your estate plan. If you already have a trust, a stand-alone special needs trust can be drafted. If you haven't created a trust yet, a special needs trust can be incorporated into yours. The trust can provide distributions for the beneficiary's special needs, such as medical care not covered by public benefits, computers, TV, vacations, and other items or activities to enhance the beneficiary's life. With such a trust, the beneficiary is able to continue eligibility for government benefits and use his or her inheritance to supplement those benefits.

The other aspect of estate planning to consider when you have a special needs family member is to be sure that beneficiary designations and life insurance beneficiaries do not include the disabled person. A beneficiary who receives a pay out from an insurance policy, annuity, or pension plan is also subject to losing public benefits.

For questions about special needs trusts or any other estate planning issue, call us or email us at Pinkerton, Doppelt, & Associates, LLP,

If you have a will and not a trust, when you die your estate will have to go through probate. In general this means that all the property that the deceased owned at the time of death such as real property, personal property, bank accounts, investment accounts, etc. will be part of the probate estate. However there are some exceptions. You may have in your estate some assets that do not go through probate in California. These are some of them:

1. Property held in joint tenancy. An example might be a home you own with your spouse with a “right of survivorship.” Sometimes people own their cars in joint tenancy with other people or a bank account in joint tenancy. When a joint tenant dies, the other joint tenant(s) inherit the property without the probate process. Although assets held in joint tenancy avoid probate, holding title in joint tenancy can cause other problems such as the potential loss of a full step-up in basis which can result in capital gains. Another problem which can result when you own something in joint tenancy is that creditors of the other joint tenant may be able to enforce a judgment against the property.

2. Payable on Death Accounts (or POD accounts). This is a type of account where you choose a beneficiary who will receive the account upon your death. These accounts pass to the beneficiary without probate.

3. IRAs and Retirement Accounts. Benefits payable to beneficiaries under these accounts automatically pass to the named beneficiaries and avoid probate.

4. Life Insurance Proceeds. Just as with pension and retirement plans, life insurance proceeds bypass probate and are paid directly to the named beneficiaries.

Another way you can avoid probate is to transfer your assets into a revocable living trust. Assets which have been transferred into the name of the trust are non-probate assets. Contact the experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP if you would like more information about a trust or putting your assets into some other form which will avoid probate.

Wouldn't it be nice for your heirs to conintue to receive money from your estate long after you are gone? A recent article in Forbes Magazine listed the top celebrities whose estates continue to make money long after their death.

Not surprisingly, Evis Presley comes out on top, with income of $52 million in 2008. Some stars that are alive don't make that much in a year. It is not known exactly how much of that flows into his estate because various entities own interests in the income stream.

Second on the list is Charles Schultz, of "Peanuts" fame whose estate gets a big chunk of the syndicatication and merchandise fees generated by the comic strip.

Also on the list was Australian actor Heath Ledger whose estate made $20 million, mostly from his film The Dark Knight and merchandise based on the movie.

Paul Newman also made the list this year with $5 million. Celebrities who have made the list for many years include Marilyn Monroe, Johnny Cash, James Dean, Beatle George Harrison, and Marlon Brando.

At Pinkerton, Doppelt, & Associates, LLP, we don't handle any celebrity's estates, but we do help ordinary people create estate plans that will achieve their goals for distribution to beneficiaries after their death. If we can help you create an estate plan to fit your needs, call us for a complimentary consultation.

We frequently get calls from prospective clients wanting to know if creating a trust will protect their assets from creditors or lawsuits. Unfortunately, they do not.

A revocable living trust is a legal arrangement whereby you hold your assets in trust to be used and managed until your death when they will be distributed to someone else. You can add assets or remove assets from your trust at any time, even revoke the trust completely and put them back into your name individually. Since you have control of your assets, creditors can reach those assets to collect on a debt.

There are some irrevocable trusts that can remove assets from your control but these cannot be revoked, hence they should be created with advice from an experienced estate planning attorney and possibly your financial advisor.

Although protection from creditors is not a benefit you can derive from a trust, there are many other benefits that make the creation of a trust something many people should consider. Such benefits include:

1. Avoidance of probate, passing assets to your beneficiaries more quickly and inexpensively.
2. Ability to dictate the terms of distributioin to include such things as charitable gifts, children's trusts, Special Needs Trusts, etc.
3. Privacy (probate is public).
4. Can be used to manage your estate if you become temporarily or permanently incapacitated.
5. Utilization of federal estate tax exemptions for both husband and wife, reducing or eliminating estate taxes.

If you worry about your creditors being able to access your children's inheritance once you pass away, that is a different issue. You can incorporate into your trust certain provisions whereby money would be distributed to them in increments, thereby leaving only small amounts available for creditors to try to reach and leaving the bulk of the inheritance in a trust. To discuss these or other issues about trusts or any other estate planning concerns, contact us at Pinkerton, Doppelt, & Associates. Your first visit is always free.

Many younger Americans, even though they have managed to buy a home and acquire a number of other assets, remain unfamiliar with estate planning issues. A survey conducted by Fidelity Investments reveals that many Americans between the ages of 30 - 49 do not know some of the key issues and strategies for managing their assets.

61% did not know the maximum amount you can give annually in gifts without having to pay federal gift tax. Do you know that the amount for 2009 is $13,000 per person to each individual?

80% did not know what the maximum value of your estate can be to avoid federal estate taxes. Correct answer - $3.5 million in 2009.

78% were not familiar with the benefits of a living trust. If you are a regular reader of this blog, you probably know that a properly drafted trust will avoid probate, minimize estate taxes, set up trusts and guardians for your minor children, and even take care of your pets.

Other issues that many people do not know about are the purpose for an Advance Health Care Directive and even who inherits their property if they die without an estate plan. Can you answer these questions?

Younger Americans today are acquiring wealth at a faster pace than their parents or grandparents making it more important that they have a better understanding of estate planning. If you need help in understanding estate planning issues or would like to learn how an estate plan can benefit your family, calll us at Pinkerton, Doppelt, & Associates, LLP.

In our last blog, we talked about the timeline for probate in San Diego. Another question we are asked frequently is who is going to be appointed the executor or administrator of the estate? If there is a will created by the decedent, the will usually names the "executor." If that individual is unable or unwilling to serve and there are no successor executors named in the will, then the court may be asked to appoint an administrator with will annexed also known as an administrator CTA. If a person dies without a will, the person who handles the estate is called the "administrator." All administrators and executors have the same function which is to oversee the decedent's estate, including evaluating assets, paying bills, and distributing the estate to the beneficiaries.

Any interested party can petition the court to become the administrator. An interested party could be a family member or even a friend. There is however an order or priority which is set forth in the Probate Code. The following list shows the persons who have priority if they choose to be appointed:

1. Surviving spouse or domestic partner
2. Children
3. Grandchildren
4. Other issue ("Issue" means one's descendants)
5. Parents
6. Brothers and sisters
7. Issue of brothers and sisters (nieces and nephews of the decedent)
8. Grandparents
9. Issue of grandparents
10. Children of a predeceased spouse or domestic partner
11. Other issue of a predeceased spouse or domestic partner
12. Other next of kin.

Last in the priority list are other interested persons which could be friends of the deceased or even a creditor.

If you have any questions about probate or the appointment of administrators and executors, or want to petition the court to become one, contact us. at Pinkerton, Doppelt, & Associates. Your initial appointment with us is always free of charge.

If your loved one who resided in San Diego has passed away with a will or no estate plan, there will have to be a probate proceeding in the Superior Court. Probate can be a lengthy and complicated process with deadlines that have to be followed. Most people want to know “how long is this going to take?” Every probate is different. There are no simple answers to that question. The time depends on what assets are in the estate, how easily they can be liquidated, whether you own property in other states, and other issues.

The following guideline gives you a basic idea as to what has to be done and when it is usually accomplished, assuming you contact us at Pinkerton, Doppelt, & Associates, LLP or another experienced probate lawyer soon after the death.

Filing the will with the Superior Court - Within 30 days of death

File a Petition for Probate; Publication of Notice in local newspaper - Within 1 - 2 months

Hearing on Petition; Appointment of Executor or Administrator; Bond issued if necessary - 2 - 3 months

Notice to Creditors - Within 2 - 4 months

Inventory of Assets; Appraisal of all assets; Obtain a tax ID number, Pay bills - Within 4 - 8 months, depending on number and type of assets

Filing of an Estate Tax Return if required - Within 9 months of death

Filing of Federal/State Tax Returns - Within 6 - 12 months

Filing of an Accounting if necessary; File Petition for Final Distribution and Distribute Assets - Within 8 - 18 months

The above timeline is a general one. These are most of the steps which will occur but there may be other steps in your situation. Your probate may be longer or shorter depending on your loved one's estate and the court’s calendar. Litigation could also cause delays. If we can help with probate in your situation, contact us to schedule a complimentary appointment.