San Diego Estate Planning Lawyer Blog

With the increasing number of Americans who own pets, estate planning which includes pet-planning provisions are becoming more and more common. There are several options to provide for the care of a pet upon your death or disability. On our website and in past blogs, we have discussed pet trusts. Pet trusts are now enforceable in California, however you have to name a friend or family member to be the caregiver of your pet. Another option is to make a gift in your trust providing a sum of money to a named individual who will care for your pet.

There is another option for for pet owners started by University of California, Davis School of Vetererinary School called TLC for Pets. The school finds permanent loving homes and lifetime veterinary care for animals after their owner's death. The school's vets meet with the client and the pet or horse to match the pet with a suitable caretaker. The caretakers are usually members of the school or community members and friends that love animals.

As part of their estate plan, the pet owner gives a donation to UC Davis School of Veterinary Medicine. There is also an enrollment fee of $1000. Funds that are not needed for your particular pet will be used for other pets' care whose funds have run out. Other veterinary schools are starting similar programs using the Davis model.

If you need help adding "pet provisions" to your exisiting trust or creating a pet trust for your pet, call us at Pinkerton, Doppelt, & Associates. We can help you decide what type of estate planning is right for you and your pet.

A life estate is a right to exclusive possession and use of property during one's lifetime. Thus, when a person(called the "grantor") gives another individual a "life estate", the recipient (called the "life tenant") receives many of the same rights as the owner but only for his or her lifetime. When the life tenant dies, however, the property does not go to the life tenant's heirs or beneficiaries, it goes to a beneficiary designated by the property owner.

Examples might be a piece of property that you want your children to benefit from during their lifetimes, but once they have passed away, the property will go to charity. Another common example is a widow or a widower who remarries and wants to provide for their spouse during his or her lifetime but wants the family home to go to the children when the spouse dies. Specific conditions can be spelled out in the life estate agreement such as that the life tenant not do anything to diminish the value of the property, keep the property in good repair, pay the taxes, even not remarry.

Life estate can be useful in some areas of estate planning and can be created by a deed or by a will or trust. In addition to giving another individual a life estate interest, you can also give yourself a life estate in property you own. An example of this occurs when a mother transfers her home to a child but retains the right to live there until her death.

A lifetime right of occupancy is similar however the use of the property is only while the individual is actually occupying the property. As an example, if a widower remarried and wanted his new wife to be able to live in the home he owned and they shared, after his death, he could give her a right of occupany during her lifetime. If she moved out or went into assisted living or a nursing home, the right of occupancy is terminated.

Setting up a life estate or a right of occupancy can be tricky because of the many variables that are possible. If you are considering one of these as part of your estate plan, please contact us for more information or to schedule a complimentary consultation.

A power of attorney is a document that lets you appoint someone you trust ("your agent" or "your attorney-in-fact") to act on your behalf. When you create a power of attorney,you are called the "principal." Powers of attorney can be limited in scope or can be quite broad. You might execute a power of attorney to allow someone to close an escrow while you are out of town. You might give your agent the authority to sell your car with a power of attorney. Powers of attorney can be limited to a specific act or they can be quite broad. They also can be powers that are effective immediately or "springing" powers that come into existence when you become incapacitated.

A power of attorney can be misused which is why we emphasize that your agent should be someone you trust. Unfortunately there have been many cases where an agent acting under a power of attorney has used the document to help themselves to the money or assets of the principal. It is important to recognize that a power of attorney is a very powerful tool bringing with it a fiduciary duty to act in the best interest of the person giving the power of attorney.

Some circumstances to look for if you have a loved one who has given another individual a power of attorney are a sudden change in financial circumstances of the agent or the principal or a loved one seeming to be overly trusting of his or her agent. Remember too that a power of attorney can be cancelled or a new one executed at any time.

The most frequent misuse or abuse of a power of attorney are in cases committed against the elderly, incapacitated, or other individuals who may be easily influenced. If the principal is over the age of 65, misuse of a power of attorney is elder abuse. There are legal remedies for misuse or abuse of a power of attorney. If you have questions about this area or think someone has used a power of attorney fraulently or in breach of their fiduciary duty, please contact us at Pinkerton & Doppelt, LLC for a free consultation.

Last month our blog concentrated on Probate in San Diego. If you have been reading our blog, you know that fees for an executor or administrator are statutory in California. The fees are set by the Probate Code and are the fees for both the executor/administrator and the attorney for the estate. On a $500,000 estate, for example, the executor or administrator’s fee would be $13,000 and another $13,000 for the attorney. Therefore on a $500,000 estate, together the fees would be $26,000 plus there will be other costs and fees to probate the estate.

Just because you are entitled to an executor or administrator fee doesn’t mean you have to take your fee. There may be reasons not to accept a fee. As a beneficiary, your inheritance is tax free. Your executor fee is not; it is taxable income. So if you are the sole beneficiary of your parent’s will, it makes no sense to take a fee. Waiving it will increase your tax-free inheritance.

If you are one of many beneficiaries, waiving your fee will cause the other beneficiaries’ shares to be greater which you may want or maybe not. Sometimes in a family situation, executors choose to waive fees just to insure more harmony in the family.

Pinkerton, Doppelt, & Associates, LLP handles many probate matters and can advise you about taking or waiving executor/administrator fees as well as guiding you through the probate process. We are happy to answer any questions you have.

Estate planners like to use the term”estate” frequently, assuming that everyone knows what that term means. “Estate planning,” “trust estate,” “distributing your estate,” and “estate taxes” are terms often used. What do these terms mean?

In simple terms, everything you own is your "estate". It includes all real property, personal property, bank accounts, stocks, bonds, pension and IRA accounts, retirement plans, and life insurance. Sometimes assets overlooked are mineral rights, timeshares, deeds of trust, assignments, or notes receivable. It includes community property, separate property, or property held in joint tenancy with someone else. It includes all businesses, whether sole proprietorships, partnerships, or joint ventures. Personal property includes the furnishings in your home, artwork, tools, musical instruments, collections, guns, gold, RVs and other vehicles.

With that description, it is easier to understand other terms that have the word “estate” in them:

“Estate planning” involves the planning for the management of your estate during your lifetime and the plan for distribution after you die. It is not simply the writing of a will or a trust. It involves planning for periods of incapacity also, whether temporary or permanent.

Your “trust estate” is everything you transfer into the name of your trust. You probably will have assets that are part of your “estate” in the sense that they are an asset you own but will not be part of your "trust estate" because they are not in your living trust. Examples are IRAs, retirement, or life insurance which are definitely part of your “estate” but since they usually have specific beneficiaries, they are not part of your “trust estate.”

Distribution of your “estate” is the gathering and valuing all of a decedent’s assets, however held, and distributing them to the decedent’s beneficiaries or heirs. Thus if you had a trust but also had life insurance, your trustee would see that the trust assets go to the beneficiaries you named in your trust and that the life insurance proceeds were distributed to the beneficiaries you named in your life insurance beneficiary designation.

"Estate taxes” are the federal taxes that have to be paid after death if your estate is over the exemption amount, which is $3.5 million in 2009. If your “estate” (including everything you own, not just your trust assets) is over that amount, “estate taxes “ have to be paid.

The experienced “estate planning” lawyers at Pinkerton, Doppelt, & Associates, LLP can advise your about the types of “estate plans” that are available to distribute your “estate” and answer any questions you may have about whether your “estate” will be subject to “estate taxes.” Call us if we can help.

You may wonder how to determine if a loved one is at a point where they should no longer be living independently. It is a hard decision for the individual involved and for family members who want to make sure their loved one is safe but also not be too hasty in suggesting they no longer live alone.

A free online assessment is available which asks questions designed to help you determine whether someone is safe living alone. Based on the answers to a series of questions, an assessment report is sent to you via email. The questionaire was designed by the Health and Disability Research Institute at Boston University. It asks questions like whether the person has had any falls; whether they can walk independently or use a cane, walker, or wheelchair. Questions are asked about whether the individual has difficulty preparing food, grocery shopping, washing dishes, doing laundry, writing checks, balancing their checkbook, and tending to personal hygiene. The test is designed to test basic movement and physical functioning, ability to perform daily tasks, and ability to perform life skills important to independent living.

Such as assessment may be a guide to help you decide if it is time to begin the conversation with your loved one. Part of the conversation should also be to be sure their estate planning documents are in order such as their will or trust and powers of attorney for finances and health care. We would be happy to discuss any elder issues or questions you may have. Call or email for a free consultation.

One of the advantages of having a revocable living trust is that it is private and not a public record. No one has the right to see the provisions of your trust unless you want them to.

When you transfer your bank accounts into the name of your trust, you frequently will take your trust into the financial institution and show them that you have a trust. This is often done by showing the bank officer the first page and last page of your trust. You can also show or give them a copy of your Certification of Trust which is a document that shows then name of your trust, possibly the trust powers, and the current trustees. The document is notarized and can be used to show the existence of the trust. You do not have to provide any financial institution with a copy of your trust.

Upon your death or the death of your spouse, your trust becomes available to the beneficiaries of the trust or your heirs. California Probate Code Section 16061.5(a) provides:

"When a revocable trust or any portion of a revocable trust becomes irrevocable because of the death of one or more of the settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a Settlors because of a contingency related to the death of one or more of the settlors of the trust, the trustee shall provide a true and correct copy of the terms of the irrevocable trust, to any beneficiary of the trust who requests it and to any heir of a deceased Settlors who requests it."

Aside from the persons mentioned in the Probate Code, no one else has the right to a copy of your trust upon your death. The contents of your trust will remain private unless your heirs or beneficiaries or other interested persons seek court intervention to interpret the trust or address issues of distribution or trust administration.

As a practical matter, you may decide you want to give a copy of your trust to your successor trustee but you are under no obligation to do so. Some people choose to give copies to their children who are the successor trustees and the only beneficiaries. Other people keep their trust private. Contact us if you have any questions about your revocable living trust or any other estate planning issues.