North San Diego County - Will and Trust Litigation

July 30, 2008

Even when a person dies with a will or a trust, there can be disputes that result in a will contest or trust litigation. An individual may feel he or she should have been a beneficiary under a will or a trust. Sometimes a will has been changed and beneficiaries under the original will feel there has some impropriety surrounding the execution of the subsequent will. Sometimes beneficiaries may be dissatisfied with the accounting of the assets in the estate. When these types of issues occur, it may become necessary to seek the assistance of the court to resolve these issues. Common grounds for contesting a will are such things as claims of undue influence, lack of mental capacity, fraud, or an invalid codicil (amendment).

With a trust, individuals who are beneficiaries or think they should be a beneficiary may dispute the trust. Issues can arise such as the validity of the trust or amendments, the administration of the trust, or conduct of the trustee. Sometimes trustees have to be removed for misconduct or impropriety or it may be the case that beneficiaries have to initiate litigation to receive a fair distribution.

Handling a will or trust litigation matter requires special experience. If you have concerns about a will or a trust or believe you should have inherited from one, the experienced estate planning lawyers at Law Office of Scott C. Soady, A Professional Corporation can assist you. Call or e mail us for a complimentary, confidential in-house consultation.

Living Trusts Vital for San Diego Blended Families

July 25, 2008

More and more families in San Diego county are “blended families” (families that include children from previous marriages or relationships). It is estimated that 50% of first marriages end in divorce and that there are now more “blended families” in the county than traditional families.

Blended families face a number of challenges, not the least of which is estate planning. Many couples each have children from previous marriages and may have children of their marriage together. How is a trust created that will provide sufficient income for the surviving spouse and then after the second death, distribute the estate to the children of both spouses and their children together? What if the surviving spouse remarries and wants to leave assets to a new spouse or has additional children?

Another issue that can arise is if you have divorced and remarried but have no estate plan when you pass away. Your minor children may receive a portion of your estate through probate, but who will manage the children’s inheritance? Probably your ex-wife which may or may not be your preference.

These and other issues make it vital that blended families have an estate plan tailored to fit their unique situation. A QTIP trust is a type of revocable living trust that may be appropriate for blended families. It can provide income to a surviving spouse and also insure that the remainder of the estate will be distributed or held in trust for the decedent’s children.

At Law Office of Scott C. Soady, A Professional Corporation we can assist San Diegans with these and other issues affecting blended families. Please feel free to contact us by phone or e mail us for a complimentary in-house consultation.

Advance Health Care Directives and Religious Beliefs

July 22, 2008

San Diego is a multi-cultural city with people of various ethnic backgrounds and religions. Our community has such religious faiths as Catholics, Jews, Hindus, Buddhists, Christian Scientists, Jehovah’s Witnesses as well as many other faiths. A person’s religious or spiritual beliefs can have importance for their estate planning, and in particular for their Advance Health Care Directive. Standard form Advance Health Care Directives may need to be tailored for people of certain religious faiths.

An Advance Health Care Directive is a document which allows you to set forth your personal wishes for such things as life-saving procedures, blood transfusions, hydration, nutrition, and life support. You appoint an agent to make such decisions for you if you are unable to do so. A website has information about guidelines for health care powers of attorney for evangelical Christians, Muslim, Hindus, and Buddhists. Catholic guidelines are also available online as well as teachings from Judaism. Sharp Hospital here in San Diego also has a checklist of 25 topics including your religious beliefs to discuss with your agent for health care. You can also ask your Rabbi, Priest, or other spiritual advisor about what beliefs of your faith affect health care and end of life issues.

If you need specific language in your Advance Health Care Directive to incorporate your religious beliefs, the attorneys at Law Office of Scott C. Soady, A Professional Corporation can assist you with that or with any other estate planning issue. Contact us by phone or e mail us at Law Office of Scott C. Soady, A Professional Corporation. Your initial in-house consultation is complementary.

Trust Administration in San Diego

July 18, 2008

Once you create a revocable living trust your job as the creator (often called the Trustor or Settlor of the trust) is to properly fund the trust initially and thereafter see that all the assets that should be placed in your trust are properly titled.

Once you pass away, the job of administering the trust is in the hands of your successor trustee. Your trust continues in existence and certain actions are necessary to carry out the purpose of the trust. These duties are done by your successor trustee. If you are the successor trustee of a trust, it is important to understand you have certain duties. These duties are called Trust Administration and may involve some or all of the following : paying the decedent’s debts, making an inventory of the trust’s assets, creating sub trusts if called for by the trust agreement, filing tax returns, transferring ownership of real property, notifying certain parties of the death (such as the Social Security Administration, Medi-Cal, and named beneficiaries), paying estate taxes within 9 months, paying property taxes on real property, selling certain assets, and making other decisions about investments if the trust is to continue.

Trust administration does take some time and attention to details. It often requires the assistance of an attorney to advise the successor trustee and assist him or her with the duties the job involves. If you need an experienced attorney to assist you as a trustee (or as a named beneficiary), call us or e mail us at Law Office of Scott C. Soady, A Professional Corporation and we will be pleased to offer you a complimentary consultation.

Do you have a Bucket List?

July 15, 2008

The movie The Bucket List recently came out in San Diego on DVD. This movie shows an unlikely pair of cancer patients (Morgan Freeman and Jack Nicholson) who compose a list of things they want to do before they die (places to visit, things they want to accomplish before they “kick the bucket.” ) In the movie, they sky dive, drive racing cars, get tatoos, and visit the Pyramids. You may have things you want to do which are a little less adventurous. Perhaps you have your own Bucket List of things you want to see and do in your lifetime. There are countless places in the world that would be fun to visit. There may even be some places you still haven’t seen in San Diego such as the beautiful beaches in La Jolla, Del Mar, or Solana Beach. Maybe you haven't seen the beautiful view of the city from the Point Loma Lighthouse. There may be countless things you still need to say to the people you love.

While you are composing your own Bucket List, perhaps you should also consider creating an estate plan and setting forth what you want to happen upon your death. Although it may not be as much fun consulting an estate planning lawyer as it is to visit the Taj Mahal or Moonlight Beach, getting an estate plan will give you piece of mind. You can complete the rest of your Bucket List, knowing your affairs are in order and your estate will be distributed according to your wishes.

At Law Office of Scott C. Soady, A Professional Corporation, we can help you cross off “Create an Estate Plan” from your personal Bucket List. Call us or e mail us for a complimentary consultation.

San Diego South Bay - Estate Planning for Non-Citizen Spouses

July 12, 2008

In the South Bay communities of Chula Vista, National City, and San Ysidro, as well as elsewhere in San Diego County, there are many individuals who have spouses that are not U.S. citizens. Such couples have different estate planning concerns than those where both spouses are citizens.

In California when a spouse dies, the surviving spouse is entitled to an federal estate tax marital deduction. This permits the deceased spouse to leave unlimited assets to a surviving spouse, either outright or in a trust, with no estate tax liability. This only applies however if the surviving spouse is a U. S. citizen.

There is a solution to this problem. If you are a married couple and one spouse is not a U.S. citizen, the way to protect your assets is a with a special type of revocable living trust called a QDOT (Qualified Domestic Trust). A QDOT is a special type of marital trust that allows a non U.S. citizen spouse to inherit without being immediately obligated to pay estate taxes. These types of trusts are subject to strict requirements by the IRS and must be properly drafted to achieve this result.

To see if a QDOT trust is appropriate for you, contact us at Law Office of Scott C. Soady, A Professional Corporation for a free in-house consultation. You may call or e mail us with this or any other estate planning issue.

San Diego Cats Enjoy Retirement Living in Spring Valley Thanks to a Pet Trust

July 10, 2008

Recently the San Diego Union reported the story of a cat named Teila living out her days on the grounds of the National Cat Protection Society in Spring Valley. This shelter opened in Spring Valley in 1975 but in 2000 a “retirement center” was built complete with a playroom, bedroom and shaded patio. They expect to continue to expand with places for cats to climb and explore in a tropical island atmosphere. The owner Gerri Calore, reports that one woman came in to view the center as a home for her 8 cats after her death. She is going to set up a pet trust which will include a lifetime care plan at the center. The owner says that the retirement center, while the first of its kind in San Diego, is a growing trend among pet owners.

A growing trend is also providing for pets in your will or trust. You can read about the various ways to handle estate planning for pets in an article about the subject on our website. If you would like to incorporate such ideas into your own estate plan, call us or e mail us. At Law Office of Scott C. Soady, A Professional Corporation we can assist with this or any other estate planning issue and offer a complimentary consultation..

Adoption for Gay and Lesbian Couples in San Diego County

July 8, 2008

Now that the California Supreme Court has validated same sex marriages in California, we may see an increase in such couples having children or adopting them.

The Gay Lesbian Times reports that more than half of gay men and 41 percent of lesbians want to have children and an estimated two million gay or lesbian people are interested in adoption. More than 16,000 adopted children are living with lesbian and gay parents in California, the highest number in the country according to a study done by the Williams Institute on Sexual Orientation and Public Policy at UCLA.

If you are a gay or lesbian couple contemplating adoption, Human Rights Campaign Family Project has information on the various types of adoption such as open adoption, private adoption, or international adoption. At the law firm of Law Office of Scott C. Soady, A Professional Corporation we can assist you with completing the adoption process. Call us or e mail us for a complimentary consultation about adoption or any family law or estate planning issue.

Life Insurance as part of your Estate Plan

July 6, 2008

Many individuals in San Diego are considering purchasing life insurance. Most people do not know that a properly drafted irrevocable life insurance trust, known as an ILIT, can be used to reduce estate taxes or to provide substantial money for your heirs. They also bypass the probate process. For some, they can be an important part of your estate plan.

One of the ways you can create an ILIT is by transferring a life insurance policy already in existence into your newly created ILIT. Another way is to create an ILIT and have the trustee of the ILIT apply for a new policy and transfer money to the trust annually to pay the insurance premiums. You also may be able to finance the insurance premiums with no out of pocket expense to you through a premium financed life insurance program.

The purpose of an irrevocable life insurance trust is to remove life insurance proceeds from one’s taxable estate. The trust must be irrevocable meaning that you cannot have any control or ownership of the policy. Someone other than yourself will be the trustee. Since you are not the owner of the insurance policy nor do you have any control over it, the proceeds at your death are not part of your taxable estate. The life insurance proceeds go to your beneficiaries according to the terms of your trust.

The experienced estate planning attorneys at Law Office of Scott C. Soady, A Professional Corporation can assist you in determining whether an irrevocable life insurance trust is appropriate in your situation and drafting the necessary documents. Please call or e mail us for a personal and complimentary consultation.

Charitable Giving can only be done with an Estate Plan

July 4, 2008

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.

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

July 2, 2008

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?

Democrats argue that a total repeal would benefit the wealthy. Senator Obama has publically opposed doing away with the estate tax entirely. He voted against a repeal of the estate tax in June 2006. Recently he hasn’t mentioned any idea short of a repeal but most people think he would freeze the estate tax exemption at 2009 levels which imposes estate taxes on estates over $3.5 million.

John McCain voted in favor of repealing the federal estate tax when a bill was introduced in Congress in June of 2006. ( HR 8 ) He has been quoted as saying that he favors an exemption of estates under 5 million.

Don’t postpone a decision on your estate planning until after the election. Regardless of who wins the election, it appears we may have federal estate taxes in some form. If we return to the exemption threshold of $1 million, there will be many Americans, and particularly Californians who will potentially have estate tax issues. In San Diego where the average price of a home is still close to $600,000 most people who own a home and additional assets such as IRAs, 401(k)s, mutual funds, or other assets may easily have an estate valued at $1 million. At Law Office of Scott C. Soady, A Professional Corporation we can assist you with an estate plan to address whatever the federal estate tax level may be at the time of your death. With a revocable living trust as the key element of your estate plan, you may be able to reduce the amount of estate taxes which have to be paid. Contact us by e mail or phone for a complimentary consultation on this or any other estate planning issue.