San Diego Estate Planning Lawyer Blog

When planning your trust, most people of course think about how they want their assets distributed, who will be their successor trustee, who will be the guardian of their minor children, and on what terms will their beneficiaries receive certain assets. What many people overlook is the family dynamics, ie. how will the decisions they have made in creating their estate plan affect their children and other family members? Will certain provisions in their trust cause discord leading to difficulties administering the trust and even litigation?

There are definite topics that seem to cause family disharmony. One is the choice of a successor trustee (the individual who will administer your trust after your death, pay the bills, and distribute the assets). Some clients name their oldest child. Others may make all 4 of their children co-trustees. Whatever you decide, it is important not to choice a trustee "because he or she is the oldest", or "he knows more about finances" or "I will name them all so no one feels slighted". You should consider the family dynamics of your family. Will naming them all make it difficult to make unanimous decisions? Sometimes clients will even choose a private professional fiduciary because they want to avoid the family conflict and sibling rivalry they fear may occur if they name a family member.

Another area that can be a big issue after death is the family home. You may want to leave the home to one child because they will not sell it. You may choose another child because they will sell it. When you make provisions in your trust for one child to buy out the others, you should be sure all the terms are spelled out so there is no dispute later. Whatever your choice, again think of the consequences. Disharmony among your children can result in arguments and litigation after your death which just increases the cost of trust administration.

Another potential problem area is where you have loaned one of your children money during your lifetime. Do you want those loan amounts to be deducted from that child's share or the loan forgiven?

Lastly, believe it or not,it is often personal property that causes the most disagreement among family members. If you leave certain items of personal property to designated individuals, how will the other family members feel? If you have divided all the personal propery equally among all your children, what if they disagree?

So when you create your estate plan, think about how your family is going to react when the terms of your trust are implemented. This may require some thought on your part and an experienced estate planning lawyer to carry out your wishes in drafting the plan.

At Pinkerton, Doppelt, & Associates LLP, we often have people call us after reading our blog or website articles and ask such questions as "My father died but he didn't have much, just a home. Do I have to file for probate?" or "My grandmother left me her condo in her will but it isn't worth much? Do I still have to file for probate?"

The simple answer to these questions is probably "yes" in California. In other states where property values are lower, it may not be necessary but in California, if you are left real property and other assets valued at more than $100,000 and that property was not titled in the name of the deceased's living trust, or in joint tenancy with you, you will have to open a probate.

There is a summary procedure in California to transfer property after death if the total value of the probate estate is less than $100,000. A Petition to Determine Succession to Real Property can be filed pursuant to Probate Code section 13100 if the estate is less than $100,000 and more than 40 days have elapsed since the death. It is a rare case however where real property in San Diego County is worth less than $100,000. You could have a situation though where the real property was in a trust or in joint tenancy, and the remaining value of the estate not in trust or joint tenancy was less than $100,000 in which case those assets could be transferrred to an individual pursuant to this type of petition.

One of the ways to avoid probate or a small estate affidavit is to create a revocable living trust and put your home into the trust, which means titling the real property in the name of your trust by filing a deed with the county recorder. If your home is in your trust, your heirs won't have to worry about opening a probate to receive the property you leave them.

For probate issues and estate planning, call us to schedule a complimentary appointment.

Have you thought about what happens to your "digital assets" when you are gone? What happens to your email, your Facebook page, your blog, your website? What about online banking and investment accounts? What about all the photos you have stored on your computer and personal information that needs to be removed?

This can all be very challenging for a trustee or loved one to figure out upon your death. Most people plan for the distribution of their physical assets but may overlook digital assets. Also the person you choose to be your executor or successor trustee may not be sufficiently computer savy to deal with digital assets,

The American Bar Association has a website with an excellent article on how to incorporate digital assets into your estate plan. The author Dennis Kennedy has a great 5 step approach to managing such assets, including inventorying your assets, finding someone that has expertise with computers and digital assets, leaving instructions for what should happen upon your death, and giving such individuals the authority to do such things as closing you online accounts, taking down websties or blogs, and getting valuable data off your computer.

This is an interesting aspect of estate planning that can only become more important as we continually progess in computer technology. We may see more and more clients who need to incorporate planning for their "digital estate" into their estate plan.

Some clients ask whether they need to change their will or trust when they move into California from another state. Usually wills and trusts created in one state are valid in others as long as they were validly executed in the state where they were created. However there may be rules in the state you moved from that are different from the rules in California and this could effect your estate planning, especially in the area of marital property ownership. Here are some examples that may cause you to consdier having your trust reviewed once you have moved to California.

1. If you are married and moving into California, property you acquired in another state during your marriage may become 'quasi-community" property so that now it is owed by both spouses.
This may necessitate amending some of the provisions in your living trust to be sure your trust document relects your wishes as to distributions of real property.

2. If you have a will created in another state which had a efficient probate process, you may want to change your estate plan to a trust since California's probate process can be lengthy and expensive.

3. California my have different rules concerning child's trusts and custodial accounts such as those set up under the Uniform Transfer To Minor's Act. California allows a custodial account set up for a minor to last until the child is 25. Other states limit is to 21.

4. Getting a new durable power of attorney for assets might be a good idea when you move if you are going to be dealing with California banks and assets. Some banks can balk at out of state documents.

5. California uses an Advance Health Care Directive to take the place of what some states call a Living Wll and Durable Power of Attorney for health care. At some point, you may want to consider updating to have the California form.

For peace of mind, It might be wise to have a California estate planning lawyer review your estate planning documents when you complete your move just to verify that the documents are valid and determine if they could benefit from revision. The experienced lawyers at Pinkerton, Doppelt, & Associates LLP would be happy to meet with you.

Probate is the process of transferring title to assets upon the death of an individual who dies with a will or without a will or trust. The person who has to begin the probate and follow through is the person named in your will as executor or someone the court appoints if you died without a will, called your administrator.

Many states have streamlined the probate processes however California probate has not and it can be confusing for the layman. Probate is initiated by filing a petition in the Probate Court to have yourself appointed to manage the estate. In San Diego County, the petition will either be filed in the downtown probate court or in north county. Letters Testamentary are issued if you were named as the Executor of the will or Letters of Administration if you are asking to be appointed administrator of an estate where there was no will. Once the letters have been issued, the personal representative (executor or administrator) can begin to inventory the assets in the estate, pay creditors, have the assets appraised, and ultimately transferred to a beneficiary or liquidated for distribution. The major difference between an estate with a will and an intestate estate (one without a will or a trust) is that where there is a will, the estate will be distributed in accordance with the provisions of the will. If there is no will, the estate will be distributed to the heirs at law of the decedent.

Depending on the decedent and the provisions of the will, there can be challenging issues that deveop such as a family allowance, probate homestead, and handling objections from family members. Look for a later post on these issues.

Give us a call if you are considering handling a probate on your own. We can explain the process and help you decide if doing it on your own makes sense. Sometimes the aftermath of the death of a loved one is stressful enought without having to worry about the probate paperwork. You may call us or email us with your probate questions.

Whether you need an estate plan depends in part of what stage of life you are in, your financial situation, and other factors unique to you. If you are young and just starting out with no home and few assets, a Durable Power of Attorney and an Advance Health Care Directive may be all you need. If you own a home, are married and have children, your situation changes drasticlly and you need to consider a trust. Here are some situations that make an estate plan something you need to consider:

1. You have minor children. If you have minor children, you need to think about who would care for them and manage the assets they inherit from you if you and your wife suddenly pass away. Who should be their guardian and how would you want the assets held and distributed to them as they grow up.

2. You have a disabled child or a disabled adult beneficiary. If you have a child or an adult beneficiary that is on public assistance, you need a special type of trust called a Special Needs Trust or Supplemental Needs Trust so that they can receive assets as an inheritance and not lose their eligibility for public assistance such as SSI and Medi-Cal.

3. You have no heirs. If you have no heirs, you need an estate plan, whether it be a will or a trust because otherwise your estate will go to the State of California.

4. You have a blended family with children from previous relationships. Most spouses in a second marriage want to be able to provide for their surviving spouse but also leave somethin to their own children. Creating a specific type of trust will enable you to do this.

5. You want to disinherit an heir. If you have heirs that you do not want to inherit your estate, you must create a will or a trust and specify who you do want to inherit your estate. If you die intestate (without a will or trust), your estate will go to your heirs at law.

Whatever your stage in life, we can help you create an estate plan that is right for you and will be flexible to grow with your family. Call us at Pinkerton, Doppelt, & Associates, LLP to schedule an appointment.

With the advances in reproductive medical technology we are now seeing genetic material including sperm, eggs, stem cells, and even embryos being stored. Such genetic material is stored in a cryobank for later use, but what happens when the individual who stored the material dies? Is a child born posthumously entitled to inherit from its parent? The Courts have ruled that genetic material is property which like any other property can be bought, sold, or transferred so can you leave it to someone in your will?

The case of Brandalynn v Vernoff addressed the question of the rights of a child conceived with the sperm of a dead man. Sperm had been extracted from her father when he died in 1999 and were later used to perform an invitro fertilization on the widow which led to her birth. The courts ruled that the child, although born posthumously, had the rights to inherit from her father. There is a time limit in California. The sperm has to be used to create a child within 2 years from the death of the donor or the child will not have any entitlement to inheritance.

All of these issues should be addressed before you die. You can of course set up a sperm deposit while you are alive, however you should set out in an agreement with the cryobank what should be done with the sperm upon your death.

Your also should discuss with your estate planning attorney how to make your wishes part of your trust agreement. If you would want genetic material taken at the time of death and stored for some purpose, you should spell your wishes out in your advance health care directive giving your agent, trustee, or executor the power to extract such material from you after death. If you have stored these type of genetic material before your death, your trustee or executor needs to be guided as to what should be done with it.

If you would like to consult with one of the estate planning lawyers at Pinkerton, Doppelt, & Associates LLP to see how these issues can be addressed in your estate plan, call us for a complimentary consultation.

When a loved one dies, often family members need to obtain a credit report to find out what debts are outstanding, what accounts are still open and need to be closed, and to verify there has been no identity theft. Decedents are often targeted as victims of identity theft. Scam artists track the obituaries in the newspapers, steal death certificates, or obtain identity information on online. They open up new credit cards or run up charges on exisiting accounts. Identity thieves even steal information and sell it to another scam artist, sometimes across the country, to avoid detection. It can take months before a family of the decedent becomes aware of the fraud.

You can obtain a credit report on someone who has died by writing to the three big credit bureaus: Equifax, Experian, and Trans Union. Inform them of the death with the decedent's full name, social security number, address, and date of death. Include a copy of the death certificate and your name and relation to the decedent. Ask for a current copy of the decedent's credit report and that a notice such as "Deceased - Do not Issue Credit" be put in the file. You may also want to request that any suspicious activity be reported to you. Send the letter certified mail.

You can also print out a thorough form from the Identiy Theft Resource Center

Dealing with the death of a loved one can be difficult. You don't need the added headaches of identity theft. If we can help with the death of a loved one, call us. We handle probate and trust administration and can assist with the legal process of administering a will or a trust or the probate of an individual without a will.