San Diego Estate Planning Lawyer Blog

A number of new laws are going into effect on January 1, 2011. Here are just a few:

1. Possession of marijuana of an ounce or less will be an infraction rather than a misdemeanor.

2. Toyota Prius cars will no longer be able to use the car pool lane.

3. Similar to the Amber Alert, a Blue Alert will indicate that an officer is down and a suspect is on the loose.

4. Parents can go to jail and be fined up to $2000 if their child misses more than 10 % of the school year.

5. New building codes will rquires automatic fire sprinklers in all new single family homes.

6. Companies that employ 15 or more workers must provide paid leave for an employee who donates an organ or bone marrow.

7. Social hosts that knowingly provide alcohol to persons under 21 can be held legally liable if that individual causes personal injury or death or property damage.

8. In San Diego, pedicab drivers will be required to have valid driver’s licenses.

9. New school classrooms that are build must be able to be locked from the inside.

10. It will be a misdemeanor to use email or social networking sites to impersonate someone.

Happy New Year to all from the lawyers and support staff of Scott C. Soady, A Professional Corporation!

A new series on the Discovery Channel is called The Will: Family Secrets Revealed. It is an eight part series on the wills (or lack thereof) of various people depicting the drama of some families after a death in the family. Throughout the series, each one hour episode will show the most curious and contentious real life stories of what happened after a loved one's death, complete with conspiracy, mystery, tension, and turmoil.

Coming up are segments about the Estate of Doris Duke who left her butler an estate worth 1.2 billion, the estate of Kitty Tipton Oakes who died without a will, and the estate of actress Joan Crawford who left nothing to her two children who you may recall wrote the book Mommy Dearest.

Interesting viewing which highlights the importance of estate planning. Many of these stories involve people who either wrote no will or wrote one that was later challenged. There are right ways and wrong ways to disinherit beneficiaries and techniques to minimize possible litigation after your death. Contact us at Law Office of Scott C. Soady, A Professional Corporation to discuss creating an estate plan which will fulfill your goals and minimize any drama after your death.

It's always interesting to see what famous people have done for their estate plans. The first three Presidents of the United States died with very diverse estates and wills.

George Washington had a blended family. He married Martha who was a widow with two children. George and Martha never had any children of their own but George was close to his nephews and adopted Martha's children. George wrote his will himself, providing for Martha, his children, grandchildren, and slaves. He apparently had about 300 slaves. He left the majority of his estate to Martha in a life estate which means she had the benefit of the assets until her death. He provided for his nephews and made many bequests to his family and Martha's. He also wrote in his will that he wanted to free all of his slaves upon the death of both he and Martha. Martha apparently freed some of them after George died but when Martha followed him in death, the executors did not free the remaining slaves.

John Adams, the second President of the United States, had a minimal estate, estimated to be about $100,000. Adams struggled to maintain the life style of a president with the meager salary a president had in those days. He and his wife Abigail bought some property in Massachusetts and accumulated a large library. Abigail died first and when John died, he left his residence, land, and library to his son, John Quincy Adams, with the condition that he provide for his brother Thomas an amount of money equal to half of the value of the library. The rest of the estate went to his other two sons, his grandchildren, and a niece of Abigail.

Thomas Jefferson had a fair amount of money during his life but always lived beyond his means. He spent much of it on building Monticello, buying building materials from Italy and France. He was a widower so he left some real estate to a grandson, Thomas Eppes. He had many debts which apparently exceeded his assets. Monticello was sold, some of his slaves were sold, and still many bequests he had made in his will, could not be given because of insufficient assets. He did free five slaves but not Sally Hemming, said to be the mother of several children with Jefferson. Jefferson's daughter, Martha Randolph purchased Sally Hemming and set her free.

At least the first three presidents executed wills. Many subsequent presidents and other notable Americans failed to create an estate plan at all. For assistance in creating an estate plan for you and your family, call us at Law Office of Scott C. Soady, A Professional Corporation to set up a complimentary consultation.

Scientists are studying how caregivers deal with people who have dementia, focusing on what they can do rather than what they've lost. A study by a speech professor at Ohio State University, who is studying communication with dementia patients, showed that making memory flashcards helps Alzheimer patients remember. A caregiver can put photographs of family members on flash cards with the name of the person in the photograph written underneath the picture. This professor, Michelle S. Bourgeois, developed some of the first memory books using picture and sentences to help people with memory problems recall past events.

Alzheimer's disease affects the hippocampus, the part of the brain that is critical for learning and memory processes. Less affected are long term memory and skills like reading. Even when dementia causes patients to lose their ability to speak, they can read the flashcards and smile or nod when they recognize the concept on the flashcard. The technique has also been used to deal with anger and anxiety in dementia patients. Bourgeois has taught thousands of caregivers her methods and says it seems to help them feel happier and content.

It is so important when you have a family member or loved one that you suspect has a form of dementia, to not only have them physically evaluated but also see that they create an estate plan before they become unable to execute such documents. If a conservator has to be appointed through the court system, it is costly, time-consuming, and may not result in a distribution of assets after death that the individual would have choosen. As an example, Ann is a single woman who has no children, and wants her niece to receive her asset after she dies. She can provide for her niece in her trust as long as she still has capacity. If she fails to create a trust before she becomes incapacitated, the conservator who is appointed by the Probate Court, can petition the court under what is called a petition for substituted judgment (Probate Code sections 2580-2586)and execute a trust on behalf of the conservatee. However, the conservator can only execute a trust which will leave the assets to the conservatee's heirs at law. Since Ann was survived by 2 siblings, her estate would be distributed to them and nothing to the niece.

Call the estate planning lawyers at Scott C. Soady, A Professional Corporation to set up a complimentary consultation about these issues and any other estate planning needs.

Today there are many options for people to choose as to how their loved ones should handle the disposition of their remains. Cremation is on the rise. In 1999 only 25% of Americans were cremated. In 2009, the percentage rose to 37%. It is estimated that by 2025, 60% of Americans will choose cremation. One of the reasons is of course, cost. The average cost of cremation with a basic urn and a few extras is about $1500 as compared to $7775, the average cost of a traditional funeral without a headstone or extras such as flowers. The other reason is the mind set of this generation. Many people feel that after they have passed away, what happens to their body is not an important issue. They may state a preference for burial or cremation but leave the details to their family.

Many people who do not want cremation but still want a “green” choice, opt for a green or natural burial which usually means no embalming, biodegradable caskets, and burial in a natural setting with no headstones.

The latest of green options in the funeral industry is called bio-cremation. Rather than the usual cremation which adds to the pollution in the environment, bio-cremation involves dissolving the decedent in a heated chemical solution that leaves less of a carbon footprint and is an accelerated version of the natural decomposition that the body undergoes when buried. The first bio-cremation is supposed to take place before the end of the year in Florida. Florida leads the United States in cremations, where an estimated 50% of the deaths result in cremation. Other states that are permitting the process are Maine, Maryland, Oregon, and Minnesota.

At Scott C. Soady, A Professional Corporation, we can state your preferences for burial or cremation in your Advance Health Care Directive. The Advance Health Care Directive is part of a revocable living trust package which we offer which includes a trust, pour over wills, durable power of attorney for finances, and other estate planning documents.

The Wall Street Journal recently had a good article with Seven Smart Money Tips to get the most for your holiday bucks. Some of the tips relate to estate planning.

Tip #1 - Set a gift budget
Rather than just go blindly to the mall and start buying, set a budget as to what you can afford and stick to it.

Tip #2 - Cut down on the gifts for adults
The holidays are special for kids so negotiate a truce on the gifts or gift limit for the adults. Many families draw names to reduce the amount of money being spent in these hard economic times.

Tip #3 - Focus on experiences rather than “things”
Psychologists say that experiences stick out in people’s minds rather than “things.” Maybe a gift to a sporting event, a spa treatment, tennis lesson, or a cooking class would be appreciated more than the latest gadget.

Tip #4 - Set up funds for the grandchildren
If you follow this blog, you have probably read about the gifts you can give during the calendar year to as many people as you want. How about setting up a 529 tax-sheltered college savings plan for your grandchildren? The babies and toddlers won’t know the difference and their cash-strapped parents may really like the idea given the rising cost of a college education.

Tip#5 - Make your charitable giving more effective
You can make a gift to charity in the name of someone else. Perhaps a dog lover would appreciate a gift in their name to the humane society or some other charity that benefits pets.

Tip#6 - Give gifts other than cash
You can be creative on this one. The obvious cashless gifts are food such as cookies, jam, and baked goods. How about a gift certificate to babysit a young couple’s kids for a night out or making mom breakfast in bed or doing chores for grandma for a week such as dishwashing, cleaning the house, or racking the leaves. Paying for your child to create an estate plan would be a great gift!

Tip #7 - Be a smart shopper
This tip relates to using your common sense in your holiday shopping. Try to buy things on sale. Book flights far enough in advance to take advantage of lower prices. Go online and see where the best deals are.

The attorneys at Scott C. Soady, A Professional Corporation wish you a wonderful holiday season. We look forward to helping you with your estate planning needs in the New Year.

What happens when someone dies and they have property in California but the decedent can't be found? Sometimes people go missing and are never found. Sometimes it is asssumed that someone has died in an aviation accident with no remains found. Sometimes even criminals suddenly disappear with a suitcase full of money, never to reappear. That happens to their estate?

For the immediate needs of maintenace and protection of property, a trustee can be appointed for an individual who has been missing for 90 days and is presumed to be alive. What if the individual is presumed to be dead and has been missing for a long time? The famiy needs to be able to take care of debts and take over other financial matters of the decedent.

California Probate Code section 12400 - 12408 provides a method of administration and distribution of an estate of a decedent who has been missing continuously for 5 years. This "presumed dead" petition must be filed in the county where the missing person last lived if the person resided in California. If the decedent was not a California resident, the petition can be filed wherever the decedent owned property in California. The petition must state the time and circumstances of the disappearance, last known residence, and a description of what search and investigation occurred concerning his or her disappearance. The Court determines at a hearing whether the person can be presumed dead or there should be further investigation. If the Court finds that the missing person is presumed dead, the Court can also determine the date of death and appoint a personal representative to administer the estate in the same manner as any other decedent's estate.

If the missing person suddenly appears, he has the option of recovering his property from the beneficiaries under Probate Code section 12408 as long as it is within 5 years since the distribution of assets. Other factors the Court will consider are the reasonableness of the circumstances and the cost of legal fees and administration.

As we draw closer to the end of the year, Congress is working to resolve the issue of tax cuts and the federal estate tax exemption. Within the last few days, President Obama announced that the administration and the Republicans had arrived at a proposal for a bipartisan agreement that would extend the Bush-era tax cuts and give workers a 2% reduction in Social Secuirry Tax for 2011.

Although details have not yet been made public, it is believed that the bill will reinstate the federal estate tax with a $5 million exemption amount and a top tax rate of 35%. What this means in laymen terms is that estates over $5 million will be taxed at a rate of 35%. Other aspects of the agreement would allow businesses to write off 100% of their equipment and machinery purchases during 2011, extending unemployment benefits for 13 months, and retaining “key tax cuts” for working families.

What Congress does will determine how estate planners address their clients’ estate plans. As past blogs have reported, 2010 was a year when there was no estate tax at all. Without action by Congress, the federal estate tax exemption is due to return to a level of $1 million. Many California residents have a gross estate of $1 million and need to be concerned about estate taxes if Congress doesn’t act and they should happen to pass away in 2011.

At Scott C. Soady, A Professional Corporation, we are ready to address your estate planning concerns for the coming year, no matter what Congress does. If you have not created an estate plan, preferably a revocable living trust, creating one should be on the top of your To Do list for 2011. Your initial consultation is complimentary so call us to schedule your appointment.