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The London Telegraph recently reported that there has been a “huge rise in the number of lasting powers of attorney” filed with the government. The Telegraph said more than 441,000 powers of attorney were established in 2015, nearly 12 times as many as were filed in 2008, when the British government amended the laws governing powers of attorney in England and Wales.

The Telegraph noted the correlation between the increased filings of powers of attorney and new figures from the UK’s National Health Service indicating dementia and Alzheimer’s disease had become the leading cause of death in England and Wales, overtaking heart disease. The powers of attorney figures cited above were obtained by a pension company that told the Telegraph many British citizens were still at risk for losing control over their finances due to a lack of a legally executed power of attorney.

In the United States, Alzheimer’s is currently considered the sixth leading cause of death. According to the Alzheimer’s Association, more than 5 million American citizens suffer from the disease. One out of every nine people over the age of 65 will develop Alzheimer’s, and 1 out of every three seniors will die with Alzheimer’s or some other form of dementia.

Estate planning is important because it ensures you get to decide who inherits your property. Unfortunately, there are individuals who may take advantage of your death to wrongly claim your property for themselves. In some cases, people have gone so far as to forge a will in order to seize control of an estate.

Woman Sentenced to Two Years for Forging Landlord’s Will

Recently, a California appeals court upheld the conviction and two-year prison sentence of a woman convicted of will forgery. The case arose from the 2010 death of a 63-year-old woman living in the Tujunga neighborhood of Los Angeles. The defendant was renting an apartment in the deceased woman’s home. When the decedent’s brother came to the house and asked about her sister’s “final wishes,” the defendant claimed she was the sole beneficiary of the estate. To that end, the defendant filed a petition in California court to probate a will purportedly signed by the decedent in the presence of two witnesses.

Elder financial abuse is a serious problem that affects many California residents. Caregivers may take advantage of an elderly relative or friend in an attempt to unduly influence their estate planning. In order to help protect the elderly, California law imposes a legal presumption that any gift made under a will or trust from an a “dependent adult” to a “care custodian” is the “product of undue influence or fraud” and therefore legally invalid. This is only a presumption, that can be “rebutted by proving, by clear and convincing evidence” there was no fraud or undue influence.

The presumption of undue influence frequently arises in cases where an elderly individual makes a seemingly last-minute change to a will or trust naming their caregiver, or a relative of the caregiver, as a principal beneficiary. While there may be cases where such gifts legitimately reflect an elderly person’s gratitude for services rendered, the presumption of undue influence must still be rebutted in order to ensure an unscrupulous caregiver is not simply taking advantage of the situation. A recent California appeals court decision helps illustrate this principle.

Jury Disbelieves Caregiver’s Account of “Finding” Amended Trust

Many people purchase life insurance to provide for their family’s long-term financial needs. Although life insurance is an important estate planning tool, it is generally not a good idea to name your estate as the beneficiary of any life insurance policy. For one thing, if the proceeds of your life insurance policy pass through your probate estate, your creditors can present claims against it, reducing the cash available to your family or other intended beneficiary. Even if you are not worried about creditors, allowing the policy to pass through probate can still impede your family’s access to immediate cash benefits.

Life Insurance Remains “Community Property” Despite Naming Estate as Beneficiary

Naming the estate as beneficiary may also create unnecessary confusion, which in turn can lead to litigation. Here is a recent example from here in California. This is only an illustration and not a complete statement of California law.

One area of estate planning that many people overlook is their funeral and burial. It is a good idea to include instructions regarding your wishes to the executor of your will or the successor trustee of your revocable living trust. You might even consider using a funeral planning website or service to assist you. Such advanced planning can help your loved ones save time (and money) after your death and can minimize the potential for costly litigation over such issues.

Partner, Sibling Argue Over Headstone Inscription

A recent California court case illustrates what can happen when a person’s relatives fight over burial issues. The deceased in this case was a man with three siblings. The man had no children and never married, but he was in a 48-year relationship with a woman “whom he considered his wife in all but name.”

One way to avoid probate with respect to real property is to create a joint tenancy.  While it may seem simple, this is typically not the best form of estate planning.  There can be may unintended consequences for adding someone to the title such as the inherant issues with co-ownership and unintended tax consequences.  Any form of estate planning, including adding someone to a deed, should only be done after consulting with an estate planning attorney.

Joint Tenancy basically means you co-own the property with another person and each of you have survivorship rights. So if you and your spouse co-own a house as joint tenants, upon your death your interest in the property automatically passes to your spouse (or vice versa). The property will not pass through probate under your will.

The other way to co-own property with other persons is as tenants in common. In this form, each person separately holds their interest in the real property and nobody has survivorship rights. Say, for example, you and your brother buy a piece of commercial real estate as tenants in common. You each own 50% of the property, and upon your death your 50% would pass according to the terms of your will. Your brother would have no survivorship rights.

A key function of an estate plan is to designate a person to act in your name after you’re gone. This person must be responsible for gathering your assets, paying off any valid debts and costs of administering your estate, and distributing the remaining property to your chosen beneficiaries. If you fail to designate such a person, California law will determine who fulfills this critical role.

Generally, the person who oversees your estate is known as your “personal representative.” California law also refers to a personal representative as an “executor” or “administrator.” All three terms describe the same function, although there is a legal distinction between their method of appointment.

Executors

When a person dies without a will, California law specifies an order of precedence for individuals entitled to act as executor or administrator of the estate. A surviving spouse or domestic partner has top priority over all other persons, including the children or parents of the deceased. Obviously, this assumes the spouse or domestic partner has a legally recognized relationship. In some cases, California courts will recognize a “putative” spouse or domestic partner-someone who has a good faith belief they were the deceased’s spouse or domestic partner despite the failure to obtain legal recognition.

A recent California Court of Appeals decision illustrates the confusion that can arise when a person claiming to be a spouse or domestic partner fails to support his or her claim. This case is discussed here for informational purposes only and should not be construed as a complete statement of California law on this subject.

Estate of Langman

Copyrights are a unique form of intellectual property recognized by the federal government. A copyright exists in an “original work of authorship” fixed in any form. Copyright is not the same thing as ownership of a material object. Under federal law, a copyright can be transferred by will (or intestate succession) like any other item of personal property. It is important to understand that copyright exists separately from the actual object that is the subject of the copyright. For example, if you write a novel, and your will leaves “all copies of the novel in my possession” to someone, that does not transfer the copyright as well. This is because, as the term implies, copyright refers to your right as the author to decide who may or may not make copies of your work in the future.

You may not think copyright will matter much after you’re gone. But U.S. copyrights continue for 70 years after an author’s death. So if you anticipate future royalties from your artistic or literary works, it is essential to make the appropriate provisions for your copyrights as part of your will or living trust.

An Unusual Situation

A will or trust is not carved in stone-at least, not until you die. You may have cause to revise your estate plan on several occasions during your lifetime. In lieu of writing a new will, for instance, you might sign a codicil, a document amending only select parts of your will. The will and codicil must then be filed together with a California probate court.

Recently, a California Court of Appeals panel in Los Angeles upheld a probate judge’s dismissal of an effort to contest a codicil. The court said the persons filing the contest-the executors named in the original will and removed by the codicil-had no legal standing.

Rose v. Shaylin