San Diego Estate Planning Lawyer Blog

Pets are a large part of our daily life. Pets can provide relief from stress, companionship, and an opportunity to get some exercise and socialization. Pets also can have a beneficial effect on our health in other ways.

A study at the State University of Buffalo showed that people with high blood pressure who adopted a dog had lower blood pressure readings in stressful situations than those without a dog. In another study of hypertensive stockbrokers, those who got cats or dogs were found to have lower blood pressure than whose who didn’t.

A study in Australia found that pet owners also have lower cholesterol levels than people without pets.

The National Institute of Health found that people who have pets go to the doctors less than people without pets.

Studies have shown that heart patients who own pets have a better change of long-term survival than patients without pets.

Another study found that men with AIDS were less likely to suffer from depression if they owned a pet.

For older adults, pets help to alleviate stress, depression, and loneliness. Studies have shown that seniors who have a pet go to the doctors less often

Pets are increasingly seen in hospitals, hospices, and nursing homes. Why? Because dogs have a calming effect on people who are ill or old.

At the office of Pinkerton, Doppelt & Associates, we often are asked by clients how they can provide for their pet upon their death or incapacity. Planning for your pet can be done by adding provisions in your trust to leave not only a pet you have at death but also a sum of money to maintain the pet. We can also prepare a pet trust which is enforceable now in California. Our article about estate planning for pets provides more information about your options.

Modern technology has altered many things in our society. Can technology improve the area of estate planning? How about an electronic or video will or trust? A client recently contacted our office to ask if he could videotape his father who was in failing health explaining orally how he wanted his assets to be distributed after his death and would that be honored as a will. The short answer is no.

A video will is created when the testator reads his will or states his wishes in front of a video camera. A video will is not recognized as a valid will in any state. A video will can be helpful where there might arise a question later as to the testator's capacity however it cannot act as a replacement for a written will signed in the presence of witnesses. If it is going to be used, it should be as a helpful addition to your estate plan, not a replacement for a written will or trust. Use of a video will should probably only be done upon the advice of an experienced estate planning lawyer so that it is done correctly and doesn't cause more problems that it solves.

What about an electronic will? Nevada is the only state that recognizes electronic wills. The Nevada statute requires that the electronic will must contain the date and the testator's electronic signature which could be a signature by fax, typing a name at the end of an e-mail, or including a personal identification number. In addition the will must include at least one authentication characteristic of the testator, which could be a digitized signature, voice recognition, fingerprint, retinal scan, or other type of authentication. The statute also requires that the electronic record containing the will be created and stored in a manner such that there is only one authoritative copy of the will in existence.

It will interesting to see if either the video will or the electronic will catch on in this decade. Maybe some things shouldn't go the technology route and estate planning may be one of them.

For now, there is no estate tax in 2010. Everyone expected Congress to address the estate tax issue in 2009 but it did not happen. The House passed a bill that would have permanently kept the 2009 exemption but the Senate failed to vote on the estate tax issue leaving everyone wondering if they will respond during the next session. Without a law passed by Congress, the estate tax will re-appear in 2011 with a reduced exemption from 2009's $3.5 million to $1 million.

If Congress does enact an estate tax law sometime in 2010, will it be retroactive to January 1, 2010? Would a retroactive law be constitutional? No doubt there will some decedent who dies between January 1, 2010 and the date of the law who has an estate subject to estate taxes. The heirs or beneficiaries of such an individual would certainly litigate the retroactivity issue.

The uncertainty may cause some people to consider review their existing plans to determine the effect of the repeal in 2010 and the effect of a much lower federal estate tax exemption in 2011. Particularly individuals who have taxable estates and bypass or exemption trusts should get a review of their current trust to see if the repeal would have unintended consequences should they pass away. Many trusts have language referring to the federal estate tax exemption to allocate assets among different beneficiaries. Depending on how the trusts are set up, the repeal of the estate tax entirely could have unintended results such as disinheriting a child from a previous marriage or disinheriting a spouse from a second marriage.

If you have questions about the effect of the estate tax repeal and want to make sure your trust will still do what you intended, call us at Pinkerton, Doppelt & Associates LLP to schedule an appointment.

An irrevocable trust is one that usually cannot be revoked, modified or amended. Trusts can become irrevocable in several ways. Some are created to be irrevocable at the time they are created. An example of this type of irrevocable trust is a Irrevocable Life Insurance Trust (ILIT). This is a type of trust that is created to hold life insurance and pass the death benefit from such policies to the beneficiaries of the trust without incurring any income or estate taxes on the transfer. Such a trust cannot be revoked, changed, or amended after it is created except by court order.

Some trusts for married couples become irrevocable upon the death of the first spouse. A typical example is an A/B trust, sometimes called a Bypass Trust or Exemption Trust. With this type of trust, the Deceased Spouse's Trust becomes irrevocable after the first death and cannot be changed, amended, or revoked.

Other trusts which can be irrevocable are certain types of charitable trusts and a Qualified Personal Residence Trust (QPRT)There are some instances however, where a trust which is irrevocable can be modified by court order. Civil Code Section 3399 permits a contract (which a trust is) to be reformed when the writing, through mistake or fraud, fails to express the intent of the parties. Reforming a trust might be appropriate when due to a drafting error or scrivener's error, the intent of the individuals creating the trust has not been fulfilled.

Probate Code Section 15409 also permits a trust to be modified if “owing to circumstances not known to the settlor (person creating the trust) and not anticipated by the settlor, the continuation of the trust under its terms would defeat or substantially limit the accomplishment of the purposes of the trust.” The scope of what the court can do is broad. The Probate Court can authorize acts that are forbidden by the terms of the trust or not authorized.

Under Probate Code Section 15403 all beneficiaries of an irrevocable trust can consent to modification or termination of a trust unless the court finds that a material purpose remains for continuance of the trust and that purpose outweighs the arguments for termination or modification. Probate Code Section 15404 is even broader allowing termination or modification of a trust without court order if the settlor and all beneficiaries of the trust consent.

So there are alternatives if you have an irrevocable trust you want to reform, modify, or terminate. We offer a complimentary consultation if you would your irrevocable trust reviewed.

As many people approach their sixties, they begin wondering at what age they should start taking social security. It can be a confusing decision.

Center for Retirement Research at Boston College has a good link to download the Social Security Claiming Guide. This document has all the information you need to determine when you should begin taking social security. There are a number of factors to consider including how much you need in retirement income, your age, if married what your options are to take your spouse’s social security, etc.

Decisions also have to mde about Medicare. For information on Medicare, see this site which will link you to the Medicare website as well as other sites for Medicare information.

Retirees approaching social security age should also address other issues also such as whether they have their finances in order and on track to provide income after they retire. They should also make sure they have an updated power of attorney for assets and an updated health care directive. These two documents are critical should you become incapacitated.

If you have a revocable living trust, you should have these documents as part of your revocable living trust package but you should review them periodically to be sure they still express your wishes and that you have named someone you trust as your agent. Health care directives should be reviewed to be sure yours contains a HIPAA release. Some of the older directives or powers of attorney for health care do not contain language about HIPAA. Without a HIPAA release, your agent may have difficulty speaking to your doctors or obtaining your medical information.

Pinkerton, Doppelt & Associates has been assisting retirees for years with their estate planning needs. We would be happy to help you with yours.

As you travel through different stages of your life, you may not require the same estate plan. Estate plans are based in part on the phase of life you are in. An estate plan you created when you were in your 30's could be very different from the one you need in your 60's.

1. Young and Single. When you are in your 20's, all you probably need is a Durable Power of Attorney for Finances and an Advance Health Care Directive. Both of these documents are ones you need if you become incapacitated. If you are single, this probably means that you name your parents to make financial decisions if you are unable to and give them the power to make medical decisions for you in the event of a temporary or permanent incapacity. Once you purchase your first home, however, it is time to create a will or a trust as the centerpiece of your estate plan.

2. Newly Married. Upon your marriage, you will probably want to name your spouse as your agent on your durable power of attorney for finances and your advance health care directive. If you haven’t already, you should also create a revocable living trust and name your spouse as the beneficiary of your 401(k), life insurance policies, pension or retirement plans.

3. Married with Children. Once children come into your life, it is time to amend your trust to provide for your minor children should something happen unexpectantly to both spouses. You should make provisions for how your estate would be distributed to them and also nominate guardians to raise them. Beneficiary designations on life insurance policies, pension plans, etc. should also be updated to cover a situation where both parents die simultaneously.

4. The Middle Ages. During these years, your trust should be updated as changes occur in your life such as divorce, additional children, changes in financial situation, inheritances or substantial increase in net worth, or death of a beneficiary or trustee.

5. Retirement. During the retirement years, you may want to add provisions to your trust to make distributions to your grandchildren. You may want to provide for certain charities in your trust and you probably want to decide who should receive certain items of personal property such as jewelry, family heirlooms, or other items of personal property. If your estate is likely to be subject to estate taxes, you should consider reducing the size of your estate through gifting or creating an irrevocable life insurance trust or charitable trust.

Estate planning is not a one time project. Estate planning continues throughout your lifetime. As your life changes, your goals and objectives change which need to be incorporated into your estate plan. For all of life’s stages, call us at Pinkerton, Doppelt, & Associates, LLP if we can help.

Estate planning for some reason is a task a lot of people put on their “To Do” list but it never seems to work its way to the top of the list. Why is that?

People have many reasons for procrastinating. For some, estate planning causes them to have to think about their deaths, which is uncomfortable. For some, they don’t want to have to make important decisions about who will be their successor trustee or receive their assets. Another reason is that while many people realize the importance of estate planning, they don’t feel the urgency of it.

Estate planning is not just “important”, but it is also “urgent” if:

1. You own a home.
2. You have children under the age of 18.
3. You own a business.
4. You own property out of state.
5. You have assets valued at more than $100,000.
6. You have concerns about who would handle your financial affairs if you were incapacitated.
7. You feel strongly about health care decisions that might be made for you if you were unable to make them for yourself.

This list, as you can see, covers pretty much everyone. If you have questions as to why you need an estate plan such as a will or a trust, contact us. If you have put estate planning on your “To Do List” but it didn’t make it to the top of your list in 2009, put it at the top of your “Urgent To Do List" for 2010. Call us at Pinkerton, Doppelt, & Associates, LLP to schedule your appointment for the new year and have a Happy New Year!!

In the 1950's there was a TV program called "The Millionaire" where an anonymous millionaire gave away a million dollars each week to people he never met. The money was conditioned on the donee not revealing how he got the money or how much he received. I guess no one thought about things like gift tax, gift returns, or the IRS. It was TV!

A new documentary about real life situations involving wills and trusts is filming now for airing on Discovery Investigation. It will chronicle true stories about will, trusts, and estates and how they affected the people who created the will or trust, beneficiaries, or those cut out of a will. The program will interview everyone involved and show both sides of the controversy.The program is appropriately called "The Will."

At Pinkerton, Doppelt, & Associates, LLP we know the importance of creating an estate plan. Without a will or a trust, the California Probate Court will determine who inherits your assets and will do so through probate administration. Maybe such a documentary as "The Will" will help viewers to understand the importance of wills and trusts and encourage people who do not have an estate plan to create one.

Recently several reports have come out predicting that life expectancy is on the increase. Males born in the 1900's could expect to live into their 60's. A male born in 2005 can expect to live into his late 70's. Mac Arthur Research Network on an Aging Society estimates in a recent report that Americans will live longer in the next 40 years. They estimate that women will live to be 89 - 93 on an average by the year 2050 and men 83 - 86 years. Another study which was published in the medical journal Lancet estimates that more than half of babies born since 2000 can expect to live to be over 100 years old.

What implications will these extra few years mean to our society? Longer lives (and presumably healthier) lives will change the traditional cycle of education, employment, and retirement. There will be more older persons living longer which surely will affect health care, health insurance, and medical providers that specialize in elder care. Older workers may need to stay in the work force longer and plan for retirement a little differently. The outlays which will be necessary for Medicare and Social Security could rise by $3.2 million to $8.3 million by 2050. Maybe people won’t want to retire at age 60 - 65 if they still have another 40 years to live. A postponed retirement may affect the types of investments that should be included in your portfolio. It also could affect rules about distributions from retirement accounts, pension plans, and IRA’s.

For estate plans, a longer life expectancy may lengthen the length of the relationship you have with your estate planning attorney and alter the way estate planning is done to address these challenges. The next few decades will be interesting.

In many San Diego communities, and especially at the beaches of La Jolla, Del Mar, Cardiff, Encinitas, and Carlsbad, there are people who own a home but make their residence in another state. Or maybe you live here in California and own a second home in Colorado, Oregon, Utah or some other state. Why is estate planning especially important for you?

If you own real estate or even tangible personal property in more than one state, each state will be involved in the distribution of your property upon your death unless you do estate planning. The state where real property or other assets is located has the authority to resolve issues of title to property. So if you make your residence in California but own a timeshare in Hawaii, a timeshare in Florida, and a cabin in Colorado, probate proceedings called ancillary probate will have to be set up in each of those states and in California. Ancillary probate could be necessary if you have cars, boats or airplanes registered in another state or oil, gas, and mineral rights. With the filing of a probate, comes additional costs and probate fees and additional time to conclude each probate.

There are several ways to avoid ancillary probate of property in another state. The best way to transfer title to out of state property upon your death is to have a revocable trust and record each piece of property in the name of your trust. Upon your death, there will be no probate, just the administration of your trust in California, a process that can be accomplished without multiple probates.

Another way is to title the real estate or personal property is to put the property in the joint names of you and your spouse with rights of survivorship, however if both you and your spouse die together, the property will need to be probated. If you want to title property in your name and some other individual as joint tenants, there are disadvantages. The joint owner can be sued and a judgment placed on the property which could keep you from selling the property. Also if you put another indidivual on title with you, the IRS could consider the transfer a gift, to which a gift tax may be applicable.

The bottom line is if you have real or personal property in different states, you need to plan carefully. If we can help with your estate planning, contact us.

When you give money or property to another person as a gift, you may have to pay a gift tax. The tax is paid by the donor. The person receiving the gift does not have to pay the tax The exemptions for gifts and the gift tax rates are established by the IRS. In 2009 the gift tax exemption threshold is $13,000 meaning that all gifts to one person are not taxable if added together they do not exceed $13,000. Staying under this number means that no gift tax will be due and no gift return has to be filed.

As the holidays and year end approach, many people like to give gifts of money or assets. One important point to remember is that the IRS considers a check to be a gift in the year that it is cashed. Therefore if you are thinking about giving a hefty check to someone for Christmas or some other reason before year end, be sure they cash the check before the end of the year, if you want the amount to count for your 2009 gift tax exemption.

Also remember that the gift exemption is per person so if you are married, you can both give $13,000 to your son, for example, for a total of $26,000. Also you could give a gift to your son in December and then again in January of the following year and as long as your total gift amount does not exceed the exemption amounts for those two years, the gifts would not be subject to gift tax.

There are some gifts that are exempt from the gift tax. Those are gifts made to pay for education tuition and/or medical expenses, gifts to your spouse, and gifts to charity. Tuition payments and medical expenses need to be paid directly to the qualified institution and to the medical provider, not to the individual. Gifts can be made between spouses in an unlimited amount. Also, gifts to charity are unlimited. The donee has to be a qualified charity, however, and you can find out whether a particular organization is a qualified charity by contacting them.

If you are considering giving a very large gift, one over the exemption amount, it is a good idea to contact your estate planning attorney or CPA. If we can help, contact us at Pinkerton, Doppelt.& Associates LLP.

The U.S. House of Representatives will vote perhaps as early as this week on legislation to extend the current estate tax rates permanently. Currently the tax rate is 45% of any estates in excess of $3,500,000. As previously discussed in past blogs, $3,500,000 was the tax exemption for 2009. In 2010 there will be no estate tax at all which means that no one will have to pay estate taxes no matter how large their estate is. In 2011, however, without some new legislation, the estate tax will go back to a rate of 55% on assets in excess of $1,000,000. This makes people a little nervous, especially in San Diego where home prices and values are much higher than elsewhere in the country.

All of this stems from the major tax overhaul enacted by President George W. Bush in 2001. Prior to 2001, the top tax rate on inheritances was 55% on estates in excess of $675,000. The law gradually decreased the tax rate and increased the tax exemption amount to the 2009 figures of 45% on estates over $3,500,000.

The bill in the House was introduced by Representative Earl Pomeroy from North Dakota. The bill would make permanent a 45% tax rate on inherited assets in excess of $3,500,000. It is predicted that the bill will pass in the House but whether it has enough support to pass the Senate is debatable. Many people favor a full and permanent repeal of the death tax. If the Senate does not pass the bill by the end of the year, the federal estate tax is scheduled to die for one year only to reappear on estates in excess of $1,000,000 in 2010.

The death tax affects a surprisingly small number of Americans. According to the IRS, in 2009 less than one-quarter of 1% had estates big enough to pay estate taxes. One of the reasons is undoubtedly that the wealthy take advantage of advanced estate planning techniques to reduce or eliminate estate taxes. Even the middle-of-the-road estate can benefit from some sort of estate planning. Contact us to see how. Look for furture blog postings on whether this new legislation becomes law.

Celebrity deaths often highlight various estate planning issues as prior posts have discussed. Michael Jackson's death brought public awareness to issues about choosing your executor and trustees, pour over wills, and guardianship. You may recall that Michael Jackson named his mother as guardian of his children. His second choice was Diana Ross. If Michael Jackson's mother had predeceased him, would he still have wanted Diana Ross to raise his kids, rather than a family member? We'll never know.

The lesson to be learned is first of all, to name someone you believe will be the right person to raise your children. Do they share your values? Are they stable individuals who will likely be able to provide the necessaries of life? Do they have any medical issues? What if you chose a couple and they get a divorce?

It is important to review your guardian nominations from time to time. As time passes, circumstances and people change. People you choose early in your childrens' lives may not be the ones you would choose for teenagers. Maybe you named your parent and that parent is now too old to raise your children. Maybe the original guardians have moved away and you want someone local to raise your children. Maybe you have siblings you are close to now and they would be a good choice to raise their nieces and nephews.

The New Year is a good time to review your estate plan to be sure it is up to date, including the nominations of guardians. It is a good idea while you are at it, to also review other aspects of your estate plan. Are the ages that you want distributions to your children still what you want? Do you want to add provisions to your trust about distributions for college, buying a house, or having a child? Do you need to add spendthrift provisions or substance abuse provisions for a particular child?

Call us at Pinkerton, Doppelt, & Associates LLP to set an appointment to review your estate plan.

Every revocable living trust should have a Schedule A attached to it. This is a document prepared by your estate planning lawyer to list all of the assets that are part of your trust, ie. they have been titled in the name of your trust “John Doe, Trustee of the John Doe Trust.”

There are two important things to keep in mind about your schedule A. First, it is just a summary of your trust assets. What is critical is that assets you want to be in your trust are indeed titled in the name of your trust. Assume for example that you buy a new home and that the deed to your new home lists your trust as the owner but you fail to get out your estate planning binder to add it to your Schedule A. Is the home “in” your trust? Is the home now a “trust asset”despite not being listed on your Schedule A? Yes, because what matters is how the deed is written, not whether you actually wrote it on your Schedule A.

The second important thing to know about a Schedule A is that although it is just a list, that list can in some circumstances assist in avoiding probate. As an example, suppose your Schedule A lists a particular brokerage account that you intended to title in the name of your trust but somehow forgot to mail in the necessary paperwork to make the change. Is the brokerage account “in” your trust (ie. is it a trust asset?) No, because it has not been properly titled in the name of your trust. In California however, if you have an assets listed on your Schedule A and have not transferred that asset by making the title change, you can file a petition called a Heggstad petition to show the court your intent was to transfer the asset into the trust.

Also important is that you keep your Schedule A up to date. Does it list bank accounts that you opened after you executed the trust? Does it show a vacation property you own? Are any businesses you operate in the trust? Have you sold some assets and bought other assets and listed those new assets on the schedule? An updated schedule can assist you during your lifetime in knowing which of your assets are trust assets and it can be useful for your successor trustee in handling your trust administration upon your death.

If you are now thoroughly confused about your Schedule A and its importance or not sure whether you have one, please give us a call at Pinkerton, Doppelt, & Associates and we would be happy to help.

With the recent downturn in the economy, San Diego has been one of the hardest hit with declining property values and unemployment. According to the Feds, the states in a full recession are California, Florida, Arizona, and Nevada. California has reached 11%unemployment and San Diego is in the top five cities for decline in property values. Because of these factors, San Diegans may need to review their estate plan and possibly amend their will or trust.

Suppose your trust leaves a cash bequest to a particular beneficiary, maybe a charity, and then divides the rest of your estate into percentages. When the value of your assets goes down, because of lower real property values or a decline in your investments, that in turn will affect the amount other beneficiaries receive as a percentages. As an example suppose an individual decided to leave $100,000 to his favorite charity and the rest of his estate is to be divided between his four children. The trust was done at a time when the rest of his estate had a value of $1 million. With the problems in the economy, now the estate is only worth $700,000. Instead of each child receiving 1/4 of $1 million, they will be receiving 1/4 of $600,000. Since the cash bequest to the charity comes out of estate before the rest of the estate is divided, the children are now going to have a $100,000 per child reduction. Instead of each child inheriting $250,000, they will only inherit $150,000. The trustor may want to rethink the amount of the cash bequest to charity and amend his trust accordingly.

Another example is where you leave one child your trust assets and other children non-trust assets such as an insurance policy. The amount of the life insurance proceeds are not going to change because of the economy but the trust assets very well may. If your goal is to treat all your children equally, then maybe your trust should be amended.

The main thing is to review your trust or other estate plan periodically. Also review your assets and their current value to see if your estate plan still makes sense and fulfills your goals. Look for a later post on how the federal estate exemptions for 2010 and 2011 may affect your estate plan. We are happy to answer any questions or review your existing documents to see if they need to be amended. Contact us if we can help.

Previous posts have discussed how to disinherit your heirs such as a child, sibling, or parent. But what if you want to disinherit your spouse?

Some people may want to disinherit their spouse because they have already provided for him or her elsewhere in their estate plan. Another reason for disinheriting a spouse may be because the spouse has his or her own assets. As an example, suppose a couple marry later in life and each have children from a previous marriage. Neither needs the assets of the other and want to simply provide for their own children. How best to accomplish that?

The best way to disinherit a spouse is by a prenuptial or postnuptial agreement. If spouses sign a waiver and agree to receive nothing or less than the law allows, there is no problem.

The prenuptial or postnuptial agreement containing the waiver should be prepared by an attorney to avoid a situation that occurred in the California case of Estate of Will, 170 Cal. App.4th 902 (2009). A couple in their 80's married and each had grown children. They signed a prenuptial agreement in which they essentially agreed that they would each keep their own assets and waived the right to inherit from each other. When the husband died a few years later, the wife petitioned the court for a share of her husband’s estate, arguing that the Probate Code protects a spouse who is not mentioned in estate planning documents executed prior to marriage. (The husband had not amended his will or trust after the marriage).

Section 21610 of the Probate Code gives an omitted spouse a statutory share of the other spouse’s estate but not if (1) the decedent’s estate plan specifically disinherits the spouse (2) the spouse receives assets outside of the estate, or (3) the spouse executes a valid waiver. The waiver signed by the wife was not done correctly and her husband had not specifically disinherited her in his estate plan so she argued that she was entitled to her statutory share of her husband’s estate. The California court found that the waiver she signed, although not completely in accordance with the Family Code, barred her from receiving anything from her husband’s estate.

If you are considering disinheriting a spouse for any reason, you want to be sure you do it correctly with a prenuptial or postnuptial agreement plus an estate plan (or amendment to your existing plan) with the appropriate language. The attorneys at Pinkerton, Dopplelt, & Associates, LLP have experience in both estate planning and family law and can assist you with these issues.

In San Diego, there are many people wondering in this economy, when they can retire, when to take social security, how much they need to retire, etc. Social security has predicted that many Americans will live into their 90's in the years to come and the cost of living will continue to increase so these aspects of retirement also have to be considered.

When to take social security? Although the normal age is 66 years, you can take benefits as early as 62, but your monthly benefit will be reduced. Social security has a table to determine how much it will be reduced. If you take social security early and still continue to work, your benefit will also be reduced for every dollar you earn over $14,160. See the SSA website for a chart on the amount of reduction.

If can be difficult to calculate how much you need to have saved to start retirement. Many people by delaying retirement just for a year or two can increase their annual retirement income by 9 or 10%. There are many on line sites where you can calculate how much you need for retirement. One is on Money Magazine. Another is offered by T. Rowe Price and there are many others. Make sure when you input information, consider that most peple will need at least 70% of their pre-retirement income after they retire. Be sure to add in all sources of income such as a part time job or a second career. Also figure in your projected social security benefits at retirement age.

Health care is also a retirement consideration. At age 65 you qualify for Medicare but many people also purchase a Medigap policy to supplement Medicare. A great guide to most of these issues can be found on the CNN Money site, including a section on estate planning.

The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can help you with the estate planning aspect of retirement planning. We have helped many people facing retirement create an estate plan and the documents they need to feel secure about their later years.

For a person who is terminally ill, obviously time is of the essence. This urgency creates unique estate planning issues. Planning under these circumstances may involve not only the terminally ill individual but also an estate planning lawyer, CPA, financial advisor, and insurance agent. Family members may also need to become involved to assist the person in getting documents together, transporting the client, and assisting in other ways.

Here are some issues that need to be considered:
1. Does the terminally ill client still have mental competency? If the person has capacity at the present time but there is a risk that he or she may lose that capacity, then the planning needs to be done as soon as possible. Another thing to consider is having the individual execute a power of attorney that specifically includes the power to do estate planning so that an agent can make estate planning decisions for the terminally ill person.

2. Is there a problem with estate taxes? An estate that is likely to have to pay estate taxes raises a number of issues. One way to reduce estate taxes is to have the individual make gifts. The annual gift exclusion is $13,000 per person so the ill client can give up to $13,000 to any one person. If the client makes such gifts in 2009 and then is still living in 2010, he or she can make another series of gifts of $13,000 per person. If the persons receiving the gifts are also beneficiaries under the ill client's will or trust, there is a substantial savings by gifting instead of the beneficiaries having to pay estate taxes at a rate of approximately 50%.

The ill client may also consider gifting to a charity. The ill client could potentially save on personal income taxes and his or her estate would also benefit by reduction of estate taxes by a charitable gift. Also when estate taxes are involved, an individual could consider creating a foundation, a charitable lead trust, or a generation-skipping transfer.

3. Does the terminally ill person have an up to date Advance Health Care Directive? This document is absolutely necessary for someone suffering a terminal disease. This is the document that allows an individual to appoint an agent to make health care decisions when that individual is unable to. This document can also spell out the specifics about what type of measures you want or don't want at the end of your life. A Do Not Resusitate Order may also be something that a terminally ill person may want to consider signing.

4. Are beneficiary designations up to date, such as on life insurance, annuities, retirement plans, IRAs, and POD (payable on death) accounts? Sometimes people fail to change beneficiaries on these types of accounts upon a death or change of circumstance. Now is the time to be sure all of these have the designated beneficiaries that the ill client wants.

5. Is the person's will or trust up to date and fully funded? It should go without saying that a person who is facing a terminal illness should have an estate plan. If one has been created, it needs to be up to date and in the case of a trust, funded by retitling all the trust assts in the name of the trust.

For help with any of these issues, call us at Pinkerton, Doppelt, & Associates, LLP. We know how important it is to get these matters taken care of and will assist you to accomplish your goals in a timely manner.

Recently you may have heard about the conviction of Anthony Marshall, son of New York philanthropist and socialite Brooke Astor. Tony Marshall, the only son of Brooke Astor, was convicted of 14 counts of grand theft and larceny for allegedly stealing millions from his mother's estate while she was suffering from Alzheimer's disease. The lawyer who prepared an amendment to Mrs. Astor's will was also convicted on charges of fraud and conspiracy and one count of forging Mrs. Astor's name to the amendment which changed the distribution of her estate. The amendment was made when Mrs. Astor was almost 102.

Now controversy will shift to what will be done with Mrs. Astor's estimated $180 million dollar estate. Some people speculate that the conviction might cost the grandsons of Mrs. Astor, Phillip Marshall and his twin brother Alexander, about $10 million each, a fact apparently not known to Phillip when he started a guardianship proceeding in 2006. Phillip petitioned the Probate Court to appoint a guardian for his grandmother, claiming that his father Tony was allowing her to live in squalor, telling her she had no money left, all the while taking millions from her estate. The guardianship proceeding caused prosecutors to begin investigating Tony Marshall which then led to the criminal charges. Phillip Marshall has said he never knew about the inheritance for he and his brother from his father's estate and that it was “not about the money. He wanted to protect his grandmother.”

Hopefully what this case has done in the real world is raise the public's awareness about elder abuse. Elder abuse affects about 2 million Americans over the age of 65. It can be physical abuse such as using force or causing physical injury or it can be neglect. Elder abuse can also be financial abuse where someone wrongfully takes or uses an elder's money or other assets. It can also involve, as in the Astor case, using undue influence of forgery to cause an elder to change a will or a trust. It sounds from the Astor trial testimony that the elder abuse there was both types. If we can help with an elder issue such as one discussed here or any other estate planning issue, call us at Pinkerton, Doppelt, LLP.

Martin Luther King Jr. died in 1968. His wife Coretta Scott King died in 2006 and yet issues are still being disputed over their estates. Two surviving children of Martin Luther King Jr. and Coretta Scott King are fighting over their parents’ estates. Bernice King, who is the administrator of her mother’s estate and her brother Martin Luther King III are suing their brother Dexter King alleging he wrongfully took money from Martin Luther King Jr.’s estate. Dexter King has counter-sued his sister to force her to turn over personal papers and love letters from Coretta Scott King’s estate.

A judge in Atlanta has ordered the personal property in dispute turned over to the Court until the issues can be resolved. The Judge has also order the three children to meet and try to mediate their differences.

Celebrities are no different than their non-famous counterparts when it comes to bickering over the administration of an estate. The probate court will treat them no differently. The only difference may be that they have to do their bickering in public as well as in the court room.

At Pinkerton, Doppelt, & Associates, LLP we handle many cases in which the dispute turns into litigation. Read more about trust and estate litigation here on our website. If you need our legal counsel for litigation or any other estate planning issue, we would be happy to meet with you. The initial phone or office consultation is always free.

ER’s final season and the recent premiere of Grey’s Anatomy were emotional reminders about the importance of organ donation. Family members in both series had to make hard decisions about whether to make organ donations. If you feel strongly about organ donation, one way or the other, it is important to let your family and friends know how you feel. Not only that but you should put your feelings in writing so that family and loved ones know how to carry out your wishes.

In California you can spell out your wishes in an Advance Health Care Directive. You can state whether you want organ donation, whether you don’t, and if you do, what organs and for what purposes. You can specify that you only want to donate organs for transplant or also for education or research. Another way to make organ donation possible is to put a sticker on your driver’s license. In California you can also sign up online with Donate Life California, a nonprofit organ and tissue donor registry. Registration with this entity could speed up the donation process if family members could not locate your advance health care directive.

Statistics show that the need for organs is growing but the amount of organs available for donation is not keeping up with the need. Specifying your feelings about organ donation is just one piece of estate planning. Your family and friends also need to know how you feel about end of life issues and health care, how you want your assets to be distributed upon your death, and who you want to distribute your estate. Putting your wishes down in writing to guide your family and loved ones is the best gift you can give them. Contact our firm if we can help with putting these important decisions down in the appropriate estate plan to meet your goals and specify your wishes.

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.

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.

Many people want to leave their grandchildren something when they pass away. It may be small or it may be significant. There are several ways to do this, some better than others. When you draft your estate plan, you have no way of knowing whether some of your beneficiaries are going to be minors at the time you die. You have to plan for the possibility that some may be minors.

1. Outright Gift. You can simply provide in your will that a dollar amount or a percentage of your estate will go to a grandchild but this leads to problems if the recepient is a minor. Substantial amounts of money being inherited by a minor may cause a court-supervised guardianship of the estate of the minor until he or she is 18. Then at 18, the entire inheritance is handed over to the now adult, but still 18 year old, with no limitations attached.

2. Custodial Accounts. One way you can leave money to minors is in an account under the Uniform Transfer to Minors Act ( a UTMA account). This works well for small amounts of money. The account has a custodian who has the power to withdraw funds for the health, education, and maintenance of the minor. Once the child reaches the age you specify (In California it can be as old as 25), the child has full access to the funds.

3. Minor's Trusts. Another option for leaving money to minor beneficiaries is to set up a minor's trust. This is a trust customized to fit your situation and fulfill your wishes. You have infinite possibilities. You can put limitations on what the trustee can use the assets for such as for medical expenses, education, a home, car, etc. You can provide for the intervals at which you want the child or grandchild to receive distributions. As an example, one method would be 1/4 at age 18, 1/4 at age 25, 1/2 at age 30, and the balance at 35. The disadvantage of a trust is that there are costs of administering the trust during the time it is in existence. An experienced estate planner can help you weigh the benefits against the costs and expenses associated with administering the trust.

4. Educational Savings Plans. If your goal is to help your grandchildren with their education, there are many tax-favored college savings accounts, also called 529 Plans, Cloverdale Plans, or educational IRAs. The earning are not usually taxed as long as they are used for education. If the beneficiary does not go to college, however, the funds will have to go to another beneficiary.

Other ways to help your grandchildren out is to pay their education expenses directly while you are alive. You must however write the checks out to the school, not the individual. Savings bonds also work well since they are purchased at half the face value.

Contact us at Pinkerton, Doppelt, & Associates, LLP if we can help you in deciding how best to include your grandchildren in your estate plan.

It's often overwhelming when a parent dies, having to deal with all their paperwork, bills, and determining whether there will have to be a probate filed or a trust administered. Children often worry also about their parent's debts. A long illness and nursing home or hospital expense can quickly eat up a parent's assets.

What if your parent passes away with not much other than debts? Are you liable? Can you be sued personally for their debt? Sometimes heirs even get phone calls or letters from creditors claiming that as the decedent's heirs, they are liable for the parents' debts.

Not so! Children are not responsible for paying their parent's debts. The estate of the person who died is liable but if there is no money or assets in the estate, the creditors are out of luck.

When a person dies, his or her estate is reponsible for paying off the debts. If there is a probate because your parent passed away with a will or intestate without a will, creditors have 4 months to file a creditor's claim. The administrator or executor will assess the assets and the debts and determine according to legal guidelines, the order in which the bills will be paid. If your parent had a trust, the trustee should make an effort to identify all creditors and pay them if there are trust assets. In either case, if there is no money in the probate estate or the trust estate, then the creditor won't be paid. Creditors will have to write the debt off.

Similarly with credit cards, if your parent dies with credit card debt, you are not liable. The exception would be if you co-signed with your parent on the credit card application. So make sure if you are asked to pay debts of a parent, familiarize yourself with your rights.

For questions about your rights and obligations after a death, contact us for a free consultation.

Many wills and trusts include language to deter future disputes or contests over the provisions of the will or trust. These “no contest” clauses typically provide that if someone challenges the validity of a will or trust, they take nothing under the instrument.

As an example, suppose a parent has two daughters and creates a trust leaving her estate equally to her two children. Just before her death, she changes her trust to leave the bulk of her estate to the younger dauhter with whom she lives. If the trust contains a “no contest” clause, the daughter who wants to challenge the validity of the trust as amended, faces a court holding that her objection constitutes a “contest” and therefore, the objecting child takes nothing under the trust.

Beginning in 2010, Probate Code Sections 21300-21322 will be repealed. New Probate Code Section 21310(6) will define a “contest” as one that alleges the validity of an instrument based on either (1) forgery, (2) lack of capacity (3) fraud, duress, or undue influence (4) revocation or (5) disqualification of a beneficiary under Probate Code Sections 6112 or 21350 (care custodians, drafters, etc.)

Most significantly what will change is the new Probate Code Section 21311 which provides that a no contest clause shall only be enforced if brought without probable cause. The standard for what is probable cause is a low one, i.e. was there a liklihood that the amendment was made because of forgery, undue influence, etc.

The new law will affect any will or trust whenever executed that becomes irrevocable after 1/1/2001. So in the example above, the child whose portion was cut could challenge the trust amendment if she had probable cause to believe that the amendment was executed as a result of one of the 5 grounds listed above, such as information that the daughter with whom the parent was living wrote it and influenced her mother to sign it.

The applicability of “no contest” clauses is an area of trusts and estate law that requires experienced estate planning attorneys. If you would like one of our experienced lawyers at Pinkerton, Doppelt, & Associates, LLP to review whether your trust contains an effective “no contest” provision, give us a call. We also handle litigation arising out of the applicability of a “no contest” clause as in the context of challenging a will or a trust.

San Diego County as you may know has a number of superior courts available to its residents. At Pinkerton, Doppelt, & Associates, LLP we file our will and trust matters either in the downtown branch of the Probate Court located at 1409 Fourth Avenue or at the North County branch in Vista.

The State has recently announced that it will close all state courts one day per month through the remainder of this fiscal year. The San Diego Superior Courts will be closed to the public on the third Wednesday of each month through June 2010. The closures will begin on Wednesday, September 16, 2009. If you had a matter scheduled for one of these dates, the court will reschedule your matter to another date. It remains to be seen whether court employees will be furloughed one day a montn to further cut expenses. San Diego has the second largest superior court bench with 130 judges and 24 magistrates.

While many businesses and corporations and state and county employees have been asked to take a furlough, Pinkerton, Doppelt, & Associates, LLP is still open Monday through Friday from 8 am to 5 pm to address your estate planning needs. Our estate planning attorneys practice in the areas of trust administration, probate, wills, trusts, conservatorships, guardianships, will and trust litigation, special needs trusts, charitable trusts and other areas. Feel free to call us for a complimentary and confidential consultation about your estate planning matter.

Most people agree we are in the middle of an economic recession in this country. Unemployment is high and the stock market is like a roller coaster. How does the recession affect your need for a trust or affect your exisiting trust you already have?

If you do not have a trust and have assets of over $100,000, you do need a revocable living trust even in this economy, and some people would say, even more so. If you have real property out of state, a trust will avoid probate in both California and the state where the property is located. Many people have young children and need a trust with guardians set up in case something happens to them. Death is inevitable, recession or not, but a trust will enable your estate to be distributed faster and less costly than with a will or with no estate plan at all.

If you already have a trust, the recession may also affect you. In a recession, some investors try to recession-proof their portfolios by switching their IRAs, 401(ks) or other investments into different funds or CDs. Have you remembered to always title new investments in the name of your trust and made up to date beneficiary designations? Changing accounts, sales of real property, refinancing, etc. all increase in times of rescession, leaving open the possibility that assets are not properly titled in the name of the trust.

A second way your estate may be affected is by the type of trust you have. Your trust, even if old, is still valid, but may not be optimal. Estate plans written in the 90's often require a division of the estate into two separate trusts upon the death of the first spouse. These trusts are called A/B trusts, exemption trusts, or marital trusts. That was a good choice in those days but today with an inctease in the estate tax xemption to $3.5 million ($7 million per couple) you may want to update the type of trust you have. Revising your trust may save on trust administration after the first death and give the surviving spouse more flexibility.

Lastly, the economy may affect not only you but your beneficiaries. Do you have beneficiaries that have become dependent on public assistance? Are some facing bankruptcy? Maybe you need to create a special needs trust or make sure your trustee has the power to postpone distributions if a beneficiary is in bankruptcy.

We can't control the stock market and other effects of the rescession, but we can control our own estate plan by creating the appropriate documents and revising them from time to time as necessary. Contact us if you need to discuss these issues.

We applaud clients that have had the foresight to get an estate plan in place, before they need it. It makes it much easier on your family if you have taken the time to prepare an estate plan ( a will or a trust), specifically setting forth who you want to inherit your estate, who you want to pay your final bills and distribute your estate, how you want your personal effects divided, etc. Sometimes however, doing estate planning can be just the beginning of your planning. Some people discover that on down the road they also need financial planning, long-term health care planning, or Medi-Cal planning.

Especially long term planning and Medi-Cal planning are subjects that most people know little about. You may have questions about how to pay for long-term care? How do I know if I need it? Can I plan now for the possibility I will need it in the future?

AARP (American Association of Retired Peersons has a great article tthat discusses some of these issues. According to AARP, about 60% of people over the age of 65 will require some type of long-term care during their lifetime. There are many choices for long-term care from having your family members care for you to long-term health insurance and Medi-Cal. Sometimes you need a combination of services.

For the legal side of planning for long-term care or qualifying for Medi-Cal, contact us at Pinkerton, Doppelt, & Associates, LLP. We offer a complimentary consulatation and will be happy to discuss your questions about these and other estate planning issues.

Some clients think that a good way to avoid probate is to put their adult children on the title to their home. While it is true that putting your child on the deed to your home will avoid probate, it can create all kinds of headaches not anticipated or desired. Here are some reasons:

1. Creditors of your child or the IRS (to enforce a tax lien) can go after the property that you hold jointly with your child and try to force a sale against your wishes.

2. If your child files for bankruptcy, the court could determine that the property should be part of the bankruptcy proceeding and creditors may seek to have it sold.

3. The transfer could be considered a gift, triggering a gift tax problem.

4. If your child is sued because of an accident and has no insurance or is underinsured, a judgment against your child could result in a judgment lien again your child's interest in the home.

5. If your child becomes involved in a divorce, the child's spouse could claim that the house is part of marital estate to be divided.

6. If you want to sell the property, your child will have to consent to the sale. Also if you want to refinance, your child will have to consent to the loan.

Joint tenancy can be a useful tool as part of your estate plan in limited situations but it can also lead to many problems. A better way to avoid probate is to create a revocable living trust.

If you need assistance with decisions about joint tenancy or creating a revocable trust which will avoid probate without these problems, feel free to contact us by phone or email.

Aa you have learned from the recent series of blogs on probate, if you can avoid a probate after your death, your heirs will have an easier time settling your estate.

The best way to avoid probate is to have a revocable living trust into which you transfer all of your assets to yourself as the trustee during your lifetime. Upon your death, the successor trustee you have chosen will have immediate authority to administer your trust without a probate. It is critical however that you in fact transfer your assets into your trust by deed, changing title to accounts, etc. Other advantages of a trust are privacy and that if properly drafted, the trust will also have provisions for someone to manage your assets if you become unable to do that for yourself.

Other ways to hold title to avoid probate are:

1. Property held in joint tenancy with a right of "survivorship". An example might be a home you own with your spouse with a “right of survivorship.” Sometimes people own their cars in joint tenancy with other people or a bank account in joint tenancy. When a joint tenant dies, the other joint tenant(s) inherit the property without the probate process. Although assets held in joint tenancy avoid probate, holding title in joint tenancy can cause other problems such as the potential loss of a full step-up in basis which can result in capital gains. Another problem which can result when you own something in joint tenancy is that creditors of the other joint tenant may be able to enforce a judgment against the property.

2. Payable on Death Accounts (or POD accounts). This is a type of account where you choose a beneficiary who will receive the account upon your death. These accounts pass to the beneficiary without probate.

3. IRAs and Retirement Accounts. Benefits payable to beneficiaries under these accounts automatically pass to the named beneficiaries and avoid probate.

4. Life Insurance Proceeds. Just as with pension and retirement plans, life insurance proceeds are paid to the named beneficiaries and avoid probate.

For questions about probate, living trusts, transfers to trusts, or any other estate planning area, contact us at Pinkerton, Doppelt, & Associates, LLP.

The San Diego Probate Courts hear many guardianship cases each week, in the North County Branch or the downtown branch.

A probate guardianship is the appointment by the Court of an adult or adults who will have legal guardianship over a minor child. There are two types of guardianships: (1) guardianship of the person and (2) guardianship of the estate. A child’s guardian will be legally accountable for taking care of the child’s education, shelter, food, clothing, and health care. This is a huge responsibility which lasts until the child is 18. A guardian of a minor’s estate is responsible for handling the assets of the minor.

The Michael Jackson case has caused many people to ask why the Los Angeles Probate Court is involved in determining who should be the guardians of his three children. After all Jackson did nominate his mother Katherine Jackson as the guardian of his children and that is the point of having an estate plan that incorporates a nomination of guardian(s) for minor children. However some people may not realize that the individual you name in your will or trust is just a nomination; it is not etched in concrete. The nomination sets worth your wishes but if other individuals want to file for guardianship, it will be a probate judge who will determine whether your wishes are in the best interest of the children. Hence the Court in the Jackson matter will have to weigh the interests of the children together with the wishes of Michael Jackson and the qualifications of both Katherine Jackson and the biological mom, Debbie Rowe.

Anyone can file for guardianship even if the decedent named a guardian for his or her minor children. Usually the Court will give preference to relatives such as the grandparents, uncles, aunts, or other relatives but family friends and anyone over the age of 18 can seek guardianship. The experienced attorneys at Pinkerton, Doppelt, & Associates, LLP can assist you with your guardianship matter. Contact us for a complimentary consultation.

Newspapers and magazines are already commenting that Michael Jackson’s estate will be a real nightmare. No one seems to know at this point whether Jackson had a will or a trust. Some people think there is no way he would have failed to provide for his children. In the absence of a will or a trust, his children would inherit the estate equally.

Whether Jackson created an estate plan or not, his estate will have to be settled, either in the probate court, or through trust administration. There are many creditors already lining up to be included. Although Jackson sold millions of records, he reportedly was in serious debt, perhaps as much as $400 million.

One of the assets in his estate that is going to be fascinating is the publishing rights Jackson had to millions of songs. Jackson outbid Sir Paul McCartney for a 50% interest in a music publishing catalog that includes rights to the Beatles hits as well as publishing rights to other hits by major artists, Jackson apparently paid $48 million for the rights, now estimated to be worth $500 million.

Interestingly, since Jackson died in 2009, his estate will have less estate taxes to pay than had he died last year. In 2008, the federal estate tax level for a single person was $2 million. In 2009, it is $3.5 million. However in 2010, the estate tax is scheduled to disappear entirely. For most Americans, it doesn’t matter a great deal, but think of the savings for the rich and famous by dying in 2010!

Part of our estate planning caseload at Pinkerton, Doppelt, & Associates, LLP are cases in which a will or a trust is being questioned or challenged. Typical factual scenarios are where an heir or a beneficiary has been disinherited or their share reduced because of "death bed" changes which may have resulted from undue influence, fraud, or duress. Most wills or trusts contain a clause known as a "no contest clause." "No contest" clauses are commonly found in wills and trusts to discourage someone from challenging the will or trust. Typically, the language is that if anyone contests the will or trust, that individual will take nothing.

Existing law however, allows a beneficiary or other individual to file a petition with the court (called a Safe Harbor petition) asking the court to determine whether a particular challenge fits within the definition of a "contest." If the court rules that it doesn't constitute a contest, then the will or trust can be challenged in spite of the "no contest" clause.

Last Year the California legislature passed a bill which was signed by Governor Schwarzenegger that will change the law regarding "no contest" clauses. Under the new law which will take effect in January 2010, the applicability of the "no contest" clauses will be limited to specific circumstances. The new law will eliminate Safe Harbor petitions and will also provide that a "no contest" clause will only be enforceable to defeat a will or a trust contest if brought without probable cause.

The purpose of the legislation was to permit the free access to justice by allowing such clauses to thwart litigation only in limited circumstances. It remains to be seen whether the new legislation will increase or decrease will contests and trust litigation. If we can assist you with your litigation matter in the probate or trusts area or if you have questions about no contest clauses, please contact us for a complimentary consultation.

What is financial Health? Financial health is the state of your finances. If you have good financial health, you are managing your assets, paying your debts, and saving for retirement. You also are planning for your spouse and children should something happen to you. CNN Money.com. has a nine step approach to test your financial health to see if you are on track to reach your retirement goals despite this economy. The nine steps have to do with saving for retirement, diversifying your investments, staying out of debt, maintaining an emergency fund, etc. Several of the steps involve estate planning.

The fifth step for example asks whether your estate plan is in order. Do you have a document to designate a guardian for your minor children? Have you named beneficiaries for your 401(k)s, IRAs, and insurance policies, and are they up to date? Do you have a durable power of attorney for health care? Have you set up a trust so that your children will not receive an inheritance upon turning 18? These are all important issues that are part of being financially healthy.

The seventh step asks whether you have or will be receiving an inheritance. This is important because inheriting from your parents or others can affect your own estate and require the drafting of a different kind of trust than the one you have. Inheriting a retirement account such as a 401(k) or an IRA can be tricky so you should seek professional advice if you are the beneficiary of one of these. Tax concerns may be another area that should be addressed.

If we can help with getting your estate plan drafted, reviewed, or amended, call us at Pinkerton, Doppelt, & Associates, LLP. We can assist with any of these or other estate planning issues.

Many parents and grandparents don't realize that a child, grandchild, or other beneficiary with a disability complicates an estate plan. If you have such a loved one you want to provide for in your estate plan, you need an appropriate trust even more so than someone without a disabled beneficiary in the picture. Here are some of the points often overlooked in planning for a special needs beneficiary:

Outright distributions to a special needs child or adult will likely make the beneficiary ineligible for continued SSI or Medi-Cal benefits. On the other hand, leaving such a beneficiary out of your will or trust may not be something you feel comfortable with and disinheriting that person could leave the beneficiary with total reliance on such benefits. Sometimes people think they will leave property or assets to another family member with the understanding that he or she will provide for the disabled beneficiary. This approach is unwise as the family member could not follow through ( it happens), die, or run into financial difficulty.

The way around the issue is to create a third party special needs trust as part of your estate plan. If you already have a trust, a stand-alone special needs trust can be drafted. If you haven't created a trust yet, a special needs trust can be incorporated into yours. The trust can provide distributions for the beneficiary's special needs, such as medical care not covered by public benefits, computers, TV, vacations, and other items or activities to enhance the beneficiary's life. With such a trust, the beneficiary is able to continue eligibility for government benefits and use his or her inheritance to supplement those benefits.

The other aspect of estate planning to consider when you have a special needs family member is to be sure that beneficiary designations and life insurance beneficiaries do not include the disabled person. A beneficiary who receives a pay out from an insurance policy, annuity, or pension plan is also subject to losing public benefits.

For questions about special needs trusts or any other estate planning issue, call us or email us at Pinkerton, Doppelt, & Associates, LLP,

Wouldn't it be nice for your heirs to conintue to receive money from your estate long after you are gone? A recent article in Forbes Magazine listed the top celebrities whose estates continue to make money long after their death.

Not surprisingly, Evis Presley comes out on top, with income of $52 million in 2008. Some stars that are alive don't make that much in a year. It is not known exactly how much of that flows into his estate because various entities own interests in the income stream.

Second on the list is Charles Schultz, of "Peanuts" fame whose estate gets a big chunk of the syndicatication and merchandise fees generated by the comic strip.

Also on the list was Australian actor Heath Ledger whose estate made $20 million, mostly from his film The Dark Knight and merchandise based on the movie.

Paul Newman also made the list this year with $5 million. Celebrities who have made the list for many years include Marilyn Monroe, Johnny Cash, James Dean, Beatle George Harrison, and Marlon Brando.

At Pinkerton, Doppelt, & Associates, LLP, we don't handle any celebrity's estates, but we do help ordinary people create estate plans that will achieve their goals for distribution to beneficiaries after their death. If we can help you create an estate plan to fit your needs, call us for a complimentary consultation.

We frequently get calls from prospective clients wanting to know if creating a trust will protect their assets from creditors or lawsuits. Unfortunately, they do not.

A revocable living trust is a legal arrangement whereby you hold your assets in trust to be used and managed until your death when they will be distributed to someone else. You can add assets or remove assets from your trust at any time, even revoke the trust completely and put them back into your name individually. Since you have control of your assets, creditors can reach those assets to collect on a debt.

There are some irrevocable trusts that can remove assets from your control but these cannot be revoked, hence they should be created with advice from an experienced estate planning attorney and possibly your financial advisor.

Although protection from creditors is not a benefit you can derive from a trust, there are many other benefits that make the creation of a trust something many people should consider. Such benefits include:

1. Avoidance of probate, passing assets to your beneficiaries more quickly and inexpensively.
2. Ability to dictate the terms of distributioin to include such things as charitable gifts, children's trusts, Special Needs Trusts, etc.
3. Privacy (probate is public).
4. Can be used to manage your estate if you become temporarily or permanently incapacitated.
5. Utilization of federal estate tax exemptions for both husband and wife, reducing or eliminating estate taxes.

If you worry about your creditors being able to access your children's inheritance once you pass away, that is a different issue. You can incorporate into your trust certain provisions whereby money would be distributed to them in increments, thereby leaving only small amounts available for creditors to try to reach and leaving the bulk of the inheritance in a trust. To discuss these or other issues about trusts or any other estate planning concerns, contact us at Pinkerton, Doppelt, & Associates. Your first visit is always free.

Many younger Americans, even though they have managed to buy a home and acquire a number of other assets, remain unfamiliar with estate planning issues. A survey conducted by Fidelity Investments reveals that many Americans between the ages of 30 - 49 do not know some of the key issues and strategies for managing their assets.

61% did not know the maximum amount you can give annually in gifts without having to pay federal gift tax. Do you know that the amount for 2009 is $13,000 per person to each individual?

80% did not know what the maximum value of your estate can be to avoid federal estate taxes. Correct answer - $3.5 million in 2009.

78% were not familiar with the benefits of a living trust. If you are a regular reader of this blog, you probably know that a properly drafted trust will avoid probate, minimize estate taxes, set up trusts and guardians for your minor children, and even take care of your pets.

Other issues that many people do not know about are the purpose for an Advance Health Care Directive and even who inherits their property if they die without an estate plan. Can you answer these questions?

Younger Americans today are acquiring wealth at a faster pace than their parents or grandparents making it more important that they have a better understanding of estate planning. If you need help in understanding estate planning issues or would like to learn how an estate plan can benefit your family, calll us at Pinkerton, Doppelt, & Associates, LLP.

With the aging baby boomers now becoming seniors and people living longer in general, one of the issues seniors face, especially in this economy, is the possibility of needing long term care. The cost of nursing home care has risen tremendously in the last decade. A survey done by Metlife in October 2008 listed the average cost of a private room in San Diego as $240 per day. Assisted living facilities can run anywhere from $2500 - $5000 per month, even more for specialized care such as for Alzheimer’s patients.

You can read more about long term care planning in an article here on our website. One option to pay for nursing home care is Medi-Cal, the California state-funded needs based program. Medi-Cal provides health and long term coverage to over 10 million Californians. To qualify for Medi-Cal for 24 hour care in a skilled nursing home,an applicant must pass the Income Test and the Asset Test. Medi-Cal has certain income limitations and also only pays for the cost of nursing home care if the "countable" or "non-exempt" assets of the person needing care and their spouse are below certain limits.

There are some assets that are “exempt” meaning they do not count in figuring your assets. Some of these “exempt assets” are a home, car, personal property, $1500 in life insurance, and prepaid funeral plans. You can also convert some of your countable assets into exempt assets before entering a nursing home.

If there is any chance that you or a family member will need Medi-Cal assistance, contact us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation. There are strategies we can advise you about such as spending down your assets, converting nonexempt assets to exempt assets, and other techniques to enable you to qualify for Medi-Cal. We can assist you in determining if you qualify for Medi-Cal and act as your representative in completing and submitting the application.

Medi-Cal considers the amounts they pay to you in the nature of a loan that has to be paid back from your estate after you die. There are some legal steps that can be taken to minimize or eliminate the collection attempts but they need to be handled properly to be effective.

A will that is written in one's own hand is called a holographic will and is valid in California. The basic requirements are:
1. The document must be completely written in the handwriting of the Testator (the individual creating the will).
2. The will must be dated and signed.
3. The will must be legible.
4. The will must clearly state what assets are being left to whom.
Although not a requirement, it is helpful if the will is witnessed by two witnesses or even better, notarized.

Most often holographic wills are written on stationery, notepads, paper, or even envelopes, however there are some interesting cases where people used ingenious substances in the absence of paper. In Canada, there was the famous case of a farmer trapped under his tractor so he carved a will into the tractor's fender. The fender was actually probated and held to be a valid will. The fender is on display at a law school in Canada.

Another unusual case was the so-called "petticoat will" in California. A man was in a Los Angeles hospital and fearing his imminent demise, wanted to write his will but could not find a piece of paper. A nurse tore off a piece of her "petticoat" on which he wrote his will.

One of the shortest "wills" on record was one which said "All to wife" written on a bedroom wall. Another individual carved a "will" on a wooden plank from his rocking chair. One deceased tried to carve her will on a watermelon.

The problems with these informal wills is that they often result in a legal battle over their validity. Often people don't realize there are some requirements for them to be valid. True, holographic wills are simple to create and may be necessary in an emergency, but often can turn out to cause problems never anticpated by the Testator. If you need a well written will or better yet, a trust, the experienced estate planners at Pinkerton, Doppelt, & Associates, LLP are a call or a click away.

At Pinkerton, Doppelt, & Associates, LLP we see trusts everyday that are drafted by other estate planning lawyers in San Diego or even by our own firm that cause some concern. Once your trust is drafted, it is intended to be reviewed periodically and also there are some things you need to aware of.

Not transferring into your trust all of your assets that should be in the trust. Depending on your attorney and what arrangements you make concerning transfer of assets into the trust, some transfers of assets require an affirmative action on your part. For example, to transfer your accounts into the name of your trust, you often have to visit the bank and fill out new signature cards. If you forget to do this, the bank account will not be in the trust at the time of your death, causing problems for your heirs. As you acquire new assets or change the form of the ones you have, you need to remember to title those new or changed assets into your trust. Assets that are left out, with some exceptions, will require probate and that is what you were trying to avoid in creating the trust in the first place.

Writing on your trust, crossing out words, or writing in the margins. We often have clients come into the office for a review of their trust or for some other service and find that their trust document has words crossed out or writings in the margins or highlighting. Please remember that a trust is a notarized document and it can only be changed by another document that is notarized. You cannot change your trust by crossing out language and adding the changes with your signature; it has to be formally amended. Also if we are going to petition the Court for some reason concerning your trust, a clean copy of the original trust will have to be filed.

Not amending your trust when important events happen in your life. We always try in our office to draft a trust that will take into consideration later children born or other events which may occur, however there are some events that require you to amend your trust. An example is a child born to you after the trust is drafted that is born with a disability or special needs, or later in life becomes disabled and receives SSI or Medi-Cal. Your existing trust may call for your estate to be divided equally to your children with no mention of special needs, causing your disabled child to lose his or her public assistance. A special needs trust for a beneficiary has to be set up as part of your estate plan so such an event will necessitate an amendment or a separate Special Needs Trust. There are other events that might happen in your life that also will cause your trust to become outdated such as an inheritance, death of a successor trustee, or deaths of beneficiaries.

Not keeping the original of your trust in a safe location. People differ in their opinions as to where a trust should be kept. Some people feel more comfortable keeping it in a safe deposit box. A trust can be quite lengthy however and some people feel that the cost of a box big enough to hold the trust is a factor plus the inability to have access to it. Other people purchase a safe or a fire proof box. The fires of 2007 made the point that just keeping your trust in a file cabinet at home without a copy anywhere else can be a problem. The estate planning attorney who drafted the trust should keep a copy but sometimes years later it may be difficult to locate the attorney or the document.

For these or other estate planning issues, we can help at Pinkerton, Doppelt, & Associates, LLP. Call us or email us to set your complimentary consultation.

What is the meaning of the term “capacity” in California?

Many people, particularly estate planning lawyers toss the term “capacity” out as though everyone knows what the term means. Often you hear people talk about someone “losing capacity” in the sense of not being able to make a will or trust or take care of their finances. What exactly does the term “capacity” mean in the context of making a will or a trust?

The California Probate Code provides that a person is not "mentally competent"to make at will if either of the following is true:
1. The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will. OR
2. The individual suffers from a mental disorder with symptoms including delusions or hallucinations which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.

The California Probate also provides that someone does not have "mental capacity" if at the time they are making a will or a trust they lack the ability to communicate verbally or by any other means and to understand and appreciate (a) the rights, duties, and responsibilities created by, or affected by the decision, (b) the probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision, and (c) the significant risks, benefits, and reasonable alternatives involved in the decision.

Stated simply, capacity is the ability to make decisions for yourself. It includes memory, attention, logic, information processing, verbal comprehension, and the ability to concentrate and stay on task. In the area of estate planning, it means that you can make your own decisions about your estate plan by understanding what assets you have, who you want to leave your estate to, who you want to make financial and health care decisions for you if you are unable to make those yourself, and what the various provisions in a will or trust mean.

A person may lack capacity due to dementia, brain injury, mental illness, or a progressive medical condition or disease. A person may lack capacity permanently or temporarily such as when someone has been injured in an accident but then recovers. Sometimes a medical assessment is necessary to evaluate a person’s level of memory, cognition, and judgment before important legal decisions are made.

The reason this is important is that once a person has lost his or her mental capacity, they are no longer able to execute such documents as wills, trusts, or powers of attorney. If you need assistance with estate planning documents, we offer a free consultation. Call us at Pinkerton, Doppelt, & Associates LLP for an appointment.

Often as parents or grandparents, we want to give or loan money to our children or grandchildren. Sometimes these amounts can be substantial and the question arises as to whether it should be a gift or loan. If the amount is significant, you may feel also feel that out of fairness to your other children, the loan or gift should be mentioned in your estate plan to even out the eventual distribution of your estate.

You first need to decide whether a gift or loan is appropriate. A loan means you expect to be repaid while a gift is given without any expectation that the money will be repaid.

If your assistance is to be a gift, remember that in 2009 you can gift $12,000 to any one person. If you are married and want to give a gift to your child for a car or a down payment on a house, for example, you and your spouse can give $24,000 per year. If the amount is over $12,000 per person, the IRS requires that you file a gift return.

If you are loaning money to a family member, it should be supported by written documentation such as the amount loaned, the terms of repayment, interest charged, etc. You may want to include a provision as to how problems with repayment will be resolved. Also remember that there are tax implications for certain intra-family loans so you should check with your tax consultant if the loan is over $10,000.

Some people also consider including a provision in their trust that a loan that has not been repaid before their death shall be deducted from that beneficiary’s share during distribution so that other beneficiaries are not slighted. Also for example, if you have given a child $100,000 to start a business or obtain an advanced degree, you may want to note in your trust that the amount should be deducted from that child’s share so that your children will still share equally in your estate at your death.

If you need help with intra-family loans or deciding whether to gift or loan and whether you should put a provision in your trust, contact us at Pinkerton, Doppelt, & Associates LLP for a complimentary consultation.

Most people in our high tech society have online accounts such as ebay, Pay Pal, Facebook, Linked in, etc. not to mention their online banking accounts, brokerage accounts, and others with passwords. Some people have photographs and documents stored in their computer and have passwords to get into their computer. What happens when someone dies and no one knows the passwords?

If you bank online or you conduct business on line, your family or your executor or trustee may need to access those accounts to close them, transfer funds, or conduct business. You may also want them to respond to emails, retrieve photos, or post a final blog if you have one.

Accessing online accounts can be difficult. Google for example requires proof of death and will provide access only to an executor or trustee. Facebook won’t provide access at all. Banking institutions and investment companies all have their own rules and regulations for access.

An innovative service called Legacy Locker has a new service to manage your list of online accounts and passwords. Customers choose a beneficiary who is entrusted with the digital assets, whether they are photos, emails, cash in Pay Pal, etc. Legacy Locker allows a customer to choose who should be notified of their death. After receiving verification of a customer’s death, Legacy Locker releases the information.

Similar services are VitalLock.com and AssetLock.net which serve as an “electronic safety deposit box” where registered users can store private documents plus passwords, lock combinations, and other private information

These online services of course charge for their services. It is a good idea whether you pay for such a service or keep the information in your safety deposit box to have someone know the passwords and assets you may have in your computer. What’s not a good idea is to leave the information written down on a pad in your desk drawer or worse yet, in your computer.

Many people in San Diego and throughout the country find themselves in the “sandwich generation.” They have children at home with all their issues, problems, and needs and they also have aging parents who have their own issues, problems, and needs. By some estimates, as many as 16 - 18 million people have the dual responsibility of caring for their elderly parents and their own young children. How do you approach your parents to discuss such things as an estate plan, health care directives, and planning for possible long term care?

One website uses the acronym TEMPO for advice on the talks that you should have with your parents. Topics that need to be addressed are long term health care, advance health care directives, a will or a trust in place, and their wishes about end of life issues.

T- Timing. It important to choose a good time to talk about such issues.

E- Experiences. One way to break the ice is to talk about your own experiences and feelings about estate planning, end of life issues, etc. Get an estate plan done yourself or if you already have one, talk about your experience and reasons for getting it done.

M - Motivation. Make sure you are clear about your motives in having the discussion. Some parents may be reluctant to discuss such issues if they feel you are trying to influence them rather than just being concerned. Emphasize that you are not having the discussion because you don't think they will have a long life but just to be sure plans are in place before any emergency occurs.

P - Place. A public place or at a family reunion would not be an ideal place to discuss such issues. They should be discussed in a private, comfortable setting.

O-Outcome. The outcome should be the culmination of your goals in having the discussion, ie. opening up a safe, honest dialogue about potential issues they may have to face and seeing that those issues are addressed.

Once you have had the discussion to help your parents focus on what needs to be done as far as estate planning is concerned, feel free to contact us at Pinkerton, Doppelt, & Associates if we can help. Our first consultation is always free.

Seniors in San Diego as in other cities across California have many issues that are unique to them: Elder abuse, Medi-Cal planning and eligibility, social security, health care directives and powers of attorney, rights as a grandparent, and various estate planning issues.

There is a great publication published by the California State Bar that will be coming out in May. The guide called Seniors and the Law: A Guide for Maturing Californians is a comprehensive publication which addresses laws and legal issues relating to seniors.

The publication was first printed in 2003 but has been updated for the estimated 5.5 million residents of California who are over 60.

To order a copy in English or Spanish, you can email the California State Bar at seniors@calbar.ca.gov. Orders will be shipped in May.

We know that many Americans procrastinate about getting a will or a trust done. Especially in this economy where people have a lot of challenges, an estate plan, even if desired, sometimes doesn’t work itself up to the top of one’s To Do List. What happens if you procrastinate about getting an estate plan?

Probate - Without a trust or a will, your estate will wind up in the probate court. Statutory fees will have to be paid to the probate attorney and the administrator of your estate. Probate is not private - anyone can view probate records - and the distributions to your heirs can be delayed for as much as a year and in some cases, longer.

Without a will or a trust, your surviving spouse may not inherit your entire estate. Your spouse will inherit all the community property but will only get 1/2 to 1/3 of your separate property. The remaining property will go to the children.

Minor children will not have guardians appointed. Without a designation of guardians for your minor children, the Court will have to appoint a guardian without any guidance from you as to your preference for the guardian or guidelines for raising the children.

Children may receive money outright and not be equipped to handle it. Without a trust setting forth increments for the distribution at various ages, children who are 18 will receive their money outright, all at once, which may not be a good idea for some young beneficiaries.

Special Needs Beneficiaries may lose their public assistance. If you have a child or other beneficiary who is on public assistance, inheriting money outright rather than into a special needs trust, may cause them to be disqualified from receiving those benefits.

Higher Estate Taxes - For those high net worth individuals, not having a trust can result in your heirs having to pay more estate taxes than necessary. Estate planning strategies like an A/B or A/B/C trust, irrevocable life insurance trusts, or other advanced techniques can avoid or reduce estate taxes.

Don't procrastinate any longer. Contact us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation to discuss your will or trust.

Sometimes we get calls within a day or two of a loved one’s passing away by family members who wonder what they should do. The first thing that should be done is to handle the bereavement process. Spend time with family and friends and begin the grieving process before anything else.

There are many resources on line and in San Diego for information on the grieving process.
The National Hospice and Palliative Care Organization is the largest nonprofit organization representing hospice and palliative care programs. In San Diego we have the Elizabeth Hospice, San Diego Hospice, and Hospice by the Sea to name just a few. For people dealing with the death of a child there is the Empty Cradle and the Jenna Druck Foundation.

Coping with the loss of a loved one is a process. In addition to the grief and bereavement resources listed here, there are many grief support groups at local churches or through professional counselors. Most support groups also can recommend books and articles on the subject.

We always tell our clients and potential clients that the first thing to do is to begin the healing process. In most cases, contacting us in several weeks will be fine to determine what needs to be done as far as estate and trust issues are concerned. Sometimes there are immediate issues that have to be addressed and the experienced estate planning attorneys at Pinkerton, Doppelt, & Associates, LLP would be happy to assist with those if necessary. Feel free to contact us by phone or email if you have questions.

Accidental disinheritance is a growing problem, not only in San Diego, but across the country. We have seen it in the cases of Anna Nicole Smith and Heath Ledger. Failure to update estate planning documents or beneficiary designations can cause unintended disinheritance or unequal distributions that may not have been intended.

One of the ways people accidentally cause a disinheritance is in a stepparent situation. As an example, suppose a man has a will he created when married to the mother of his children. After she dies, he remarries and writes a new will leaving everything to his new wife. When he dies, the new wife inherits everything and then leaves her estate to her own children. The husband’s children (her stepchildren) are disinherited, which was probably not the father’s intent. The way to avoid this was to have a trust set up with the new wife which could have provided that his wife had the use of the assets during her lifetime but upon her death, the husband’s children participated in the distributions. This is a situation where an experienced estate planning lawyer would have been worth the expense to draft an appropriate will or trust to take into consideration possible future scenarios.

Another way that a failure to update can cause difficulties is where a child is born after the estate plan is created and the child has special needs. A trust, if drafted correctly, usually will provide for after born children without the necessity to update the trust, however, if a child born after the trust is created has special needs and is on public assistance, a special needs trust needs to be prepared so if the parents die, the child does not receive his inheritance outright and lose his public assistance.

Another potential unintended result can occur when upon death, there are outdated beneficiary designations. Suppose a wife has made her husband the beneficiary of her life insurance policy. They divorce but she fails to remove him as a beneficiary. When she dies, the ex-husband gets the proceeds which may not have been what the wife wanted. Also if someone names a beneficiary on their life insurance policy and the beneficiary dies before the insured, the life insurance proceeds will have to be distributed through probate as there are no alternate beneficiaries listed.

There are countless other ways that failure to update your will, trust, or beneficiary designation can thwart your wishes upon your death. It is always a good idea to review your estate planning documents periodically to make sure they are up to date. If you need assistance, contact us for a complimentary consultation.

Many elderly people in San Diego are cared for at the end of their lives by caregivers and friends rather than family members. Sometimes they want to provide for those caregivers or friends in their will or trust. Such bequests however can be challenged by family members and other beneficiaries after a death.

The California Probate Code lists seven categories of people who are presumptively unable to inherit under a will or a trust. The list includes the person who drafted the will or trust, the law firm, attorneys or employees of the law firm that are asssociated with the drafting and “care custodians.” A care custodian is defined to include a number of agencies and any "individual providing health care services or social services to elders or dependent adults.”

Those persons mentioned in Probate Code section 21350 who are left an inheritance are subject to higher scrutiny before they can inherit. They can inherit only if they can prove by “clear and convincing evidence” that the bequest to them “was not the product of fraud, menace, duress, or undue influence.” This can be difficult to prove after the death of the individual making the will or trust.

The Probate Code section arose out of a case, Bernard v. Foley, where a 97 year old woman changed her trust three days before she died to leave all of her assets to two individuals, old friends, who had taken care of her after she was diagnosed with lung cancer. Although the two caregivers won at the trial level, the California Supreme Court ruled that a “care custodian” does not necessarily mean a paid caregiver; it could be a personal friend and in fact personal friends would be uniquely in a position to influence the elderly person they care for. The two friends were disqualified from inheriting anything under the trust.

There is a means by which a person wanting to leave assets to a caregiver can do so without risking the possibility that the gift will be invalidated. The Probate Code provides that an individual wanting to make a bequest to caregivers can obtain a Certificate of Independent Review by a second attorney who interviews the testator and determinines whether the testator has been unduly influenced or coerced. We can help with these and any other estate planning issues at Pinkerton, Doppelt, & Associates, LLP.

The simple answer to this question is “before you need it” however knowing when that is can often be difficult. Most of us know to plan for retirement but sometimes we don’t recognize the need to plan for when we or our parents can no longer take care of ourselves.

People are living longer and more people will need long term care than in past generations. Some people do not realize that often what strikes the elderly is not a physical ailment but a mental condition which Medicare will not cover. Medicare typically covers such things as skilled nursing but it usually does not cover custodial care. Paid caregivers at home or home health aides, a nursing home, or other assisted living facilities will not usually be paid for by Medicare.

The time to consider the expenses of long term care is before it is needed so that you can explore such options as long term health care insurance, a spend down of assets to qualify for Medi-Cal, or community services that may be available. Taking the time now to plan, before there is a need, will give you peace of mind to deal with the difficult decisions that arise when the time comes.

The San Diego based estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can assist with making sure you or your parents have up to date health care and asset powers of attorney and answer questions you have about Medi-Cal. Feel free to contact us if we can help.

Those of us who live here in San Diego know what a great place San Diego is to live and work. Besides the wonderful weather and the proximity to the beautiful beaches of La Jolla, Del Mar, and other coastal areas, there is another benefit you might not realize. California is one state that does not have an inheritance tax.

17 states and the District of Columbia assess an inheritance tax on the portion of an estate received by an individual. This is in addition to the federal estate tax levied on the estate before it is distributed. As we reported in earlier blogs, a federal estate tax will have to be paid on estates over $3.5 million in 2009. States which have an inheritance tax assess it separately against each beneficiary and each beneficiary is responsible for paying the tax to the state, although there may be a lower tax rate for spouses and children of the deceased as opposed to a distant cousin.

A revocable living trust can help reduce estate taxes for couples in California as can other advanced estate planning techniques. If you need to set up a trust or want to know your options for reducing estate taxes, contact us. The experienced estate planning attorneys at Pinkerton, Doppelt, & Associates, LLP would be happy to meet with you at no charge for your first consultation.

Are you following in the footsteps of past Americans utilizing trusts?

If you have a revocable living trust, you are in good company. Many famous people from the past utilized trusts as part of their estate plan.

When the 13 colonies declared independence in 1776, the richest man was a Senator from Pennsylvania named William Bingham. He created a trust in 1804 for his vast estate in Maine.

Joseph Kennedy, father of President John F. Kennedy established many trusts. One was to own the famous Chicago Merchandise Mart. He also created a family trust and many tax shelter trusts. His son, John F. Kennedy, had a trust. So did his son, John F. Kennedy Jr. who died in a plane crash.

William Waldorf Astor created a trust in 1991 saving his heirs millions of dollars which, without a trust, would have gone for probate fees and taxes.

The Rockefellers used various types of trusts to reduce their estate taxes. It has been estimated that they created well over 100 trusts. Likewise, H.L. Hunt, a Texas billionaire, used about 25 trusts, many for his children.

Linda Mc Cartney, wife of Beatle Paul McCartney, had a trust.

Diana, Princess of Wales, left her $35 million estate in trust for her sons William and Harry.

Baseball great Joe DiMaggio created trusts for his great grandchildren.

Ronald Reagan established a trust.

Sir Edmund Hillary, the famous mountain climber who climbed Mt. Everest set up a charitable trust for sherpas in the Himalayas.

You don't need to be rich or famous to set up a trust. Ordinary people can benefit from a trust as the main component of their estate plan. If you still need to set up a living trust for your estate, contact the San Diego estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP for a free consultation.

There are some interesting statistics about women in this country. We all know that women live longer than women and many outlive their husbands. But did you know that 75% of women will become widows at some point in their life? Unbelievably, the average age of a woman when she becomes a widow is 55 years of age! Some agencies compiling statistics suggest that the odds of needing long term care at some point is 50%. Can you guess who the caregivers will be? Women. Women are three times more likely than men to be a caretaker for their spouse. In addition women often wind up being the caregiver for one or both parents.

Because women are having to pick up the pieces after a spouse’s death or incapacity and deal with financial issues, women own a majority of the publicly traded stock in this country. Women own 70% of the wealth and inherit 75% of all the estates. What all these statistics show is that it is essential for women to participate in the estate planning process and understand basic estate planning just as it is advisable for women to become educated about financial issues.

Basic estate planning documents that are recommended for a married couple are a revocable living trust, pour over wills, durable powers of attorney for finances, and advance health care directives. Without such documents, what happens when a husband becomes incapacitated and is unable to sign necessary documents to sell a house, obtain a refinance, or create a trust? The wife has to go to court to have her husband declared incompetent and have herself appointed as his conservator, a costly, stressful, and sometimes lengthy process.

At Pinkerton, Doppelt, & Associates, LLP we have been helping couples for years with planning for the future to assure that whichever spouse is the last to pass away, the transition and financial issues which result are planned for. Call us or e mail us for a complimentary appointment.

Last year we posted a blog about cats living it up in a retirement home in Spring Valley thanks to a pet trust. Wherever you are in San Diego County, do you consider your pets part of the family? You are not alone if you do. 87% of Americans consider their pet a family member. Do you need estate planning for this family member? If you have a number of family members or friends that will step in to care for your pet, then maybe not. If any of the following are true, however, you might consider having a pet trust.

1. You have pets with a long life expectancy. Some pets are almost sure to outlive you. Birds and reptiles have exceptionally long lives. Some turtles can live almost 100 years. A macaw for example can live to be 80. Horses have a life expectancy of twenty to thirty years.

2. You live alone. If you live alone with your pet, you need to consider who would step in and care for your pet if something happened unexpectantly to you.

3. You have a chronic illness or your life expectancy is shorter than your pet. If you pet is likely to outlive you for some reason, you may need to consider making arrangements for care after you pass away.

4. Your pet is one that not just anyone can care for. Horses for example have to be cared for by someone that has experience with horses. An expensive show horse requires someone who can manage the training, feeding, and showing of the horse. A dog that is a Great Dane cannot be taken in by just anyone. Perhaps your grandson or daughter live in a apartment or have a new baby.

5. You have multiple pets. If you have a bird aviary, a stable of horses, a petting zoo perhaps, it may be difficult to find a family member or friend that can care for them. To keep your pets together, you may want to consider a pet trust.

6. Family members would not be good pet caretakers. There are many reasons why a family member may not be a good choice to care for your pet. Maybe they are allergic to cats, hate dogs, or maybe they just don’t have the time to give your pet the love and attention it is used to.

7. You have a guardian for your pet but the guardian needs assets for the pet’s care. Maybe you have a wonderful pet lover in mind to care for your pet, but that individual doesn’t have the resources to take care of the pet for the pet’s lifetime. In that case, a pet trust can solve the problem by setting aside assets in trust for the care and maintenance of your pet.

Read more about pet trusts and contact us at Pinkerton, Doppelt, & Associates, LLP for a free consultation. We can help you estimate how much should be set aside for your pet and decide who will be the human trustee to manage the trust.

As the population of people over 65 increases, so does the incidence of elder abuse and neglect. Elder abuse can be physical, emotional, or financial. The San Diego Police Dept. reports that San Diego has over 300,000 seniors. One out of every 20 elders will be a victim of elder abuse sometime in their lifetime however many incidents go unreported.

Financial abuse is the taking or using of an elder’s money or assets contrary to the elder’s wishes or needs. It can be as simple as taking money from someone’s wallet or using an elder’s credit card to identity theft or telemarketing scams. In the area of estate planning, financial elder abuse may be misusing a power of attorney or using undue influence to cause an elder to change a will or a trust or a beneficiary designation. Financial abuse is particularly devastating to an older person as it can drain the victim of their life savings and cause them to feel helpless and worried about their future.

What are some of the warning signs that someone you know may be the victim of financial elder abuse?

1. Unusual bank withdrawals from an ATM or unusual checks written to strangers or containing signatures that do not look like the elder’s signature.

2. Missing checks or credit cards or unusual activity on a credit card.

3. The sudden appearance of a stranger who becomes close to the elder and seems to want to take over the elder’s financial affairs.

4. Home improvements or items purchased which seem unnecessary.

5. Changes in account beneficiaries or new signers on an account.

6. Execution of a new power of attorney.

7. Changes in property title, deeds, or new mortgages.

8. Changes in wills or trusts if the elder seems incompetent.

9. The elder seems confused about his or her financial affairs.

The experienced estate planning attorneys at Pinkerton, Doppelt, & Associates handle elder abuse cases and can advise you about issues of elder abuse. Contact us for a complimentary consultation. Also look for later blog posts on steps to make the elder less vulnerable and remedies for elder abuse.

When people give particular assets to someone upon their death, what happens when that asset is no longer in the estate at the time of death? "Ademption" is the term used in the area of wills and trusts to describe a situation where property left to a beneficiary is no longer in the estate when the decedent dies. In that case, the property is "adeemed", i.e. the gift "fails" and the beneficiary does not receive it.

As a example, a father leaves a condominium to his daughter- maybe because she lives in the state where it is located or he wants to keep it in the family and she would be most suited to inherit. He provides in his will or trust that his other two children divide the rest of his estate. Years later he decides to sell the condo but forgets to update his will or trust. When he dies, the condo is not part of his estate and since the daughter isn't mentioned anywhere else in the estate plan, she is accidentally disinherited.

Another example is where a woman provides in her trust that she wants her 1000 shares of XYZ stock to go to her grandson. The rest of her estate is to be divided between her two children. She decides to sell the stock (or the company dissolves) but she forgets to update her trust to leave her grandson some other asset or cash bequest. When she later dies, the stock is not in her estate and the grandson gets nothing.

These are examples of unintended results caused by failing to update a will or a trust. Accidental disinheritance can occur in other ways too. Look for a later post on not coordinating your beneficiary designations with your will or trust. If you need your will or trust updated, contact us to set up a complimentary consultation.

Last week the Wall Street Journal reported that President Obama wants to freeze the current estate tax level to $3.5 million which is the estate tax exemption amount for 2009. Currently only estates with more than $3.5 million ($7 million for couples) have to pay estate tax. Obama intends to set forth his estate tax proposal in his budget next week. If the legislation is passed by Congress it will mean that the estate tax which was set to expire in 2010 would remain at $3.5 million.

The estate tax was enacted in the early twentieth century as a levy on wealth and inherited assets. It was later modified to provide that one spouse could leave an estate of any amount to the other spouse without any tax. In 2001 under President George W. Bush, Congress approved a gradual increase in the amount of the estate tax exemption with a total repeal in 2010, only to have the estate tax return in 2011 with an exemption amount of $1 million.

With the estate tax level set a $3.5 level, it is estimated that less than 2% of all deaths in this country will result in the payment of estate taxes. The vast majority of us do not have to worry about our heirs and beneficiaries having to pay estate taxes. That does not mean however that we don’t need estate planning. Even if taxes are not an issue, most people need to create a revocable living trust to avoid probate and insure that their estate is distributed to their beneficiaries on the terms they specify. If we can help with your estate plan, call us or email us at Pinkerton, Doppelt, & Associates, LLP.

People with little assets other than their home many times need a living trust more than individuals with more assets. Why? Picture this scenario: With the high cost of housing in the San Diego area, many couples both work to pay the mortgage on their home. They don’t have a will or a trust but own their home in joint tenancy. Husband is involved in a serious accident and has a brain injury which makes him unable to work and incompetent. They need to sell their home because of the loss of husband’s income. How is the wife going to sell the property?

Since the title is held in both their names, the wife cannot sell the home because the husband is incapacitated. The joint tenancy with right of survivorship only applies if the other joint tenant is dead. The husband is not dead and they both need to sign the escrow documents. Even if they had wills, a will would not be of any assistance because the husband is still alive. The wife’s only alternative is to have her husband declared incompetent and become his conservator. Conservatorship is costly and takes time. With mounting medical bills and loss of husband’s income, there is no money to pay for a conservatorship. Also a prospective sale may be lost during the time it takes the court to appoint the wife as conservator.

A revocable living trust would have avoided this problem. With a revocable living trust, there are incapacity clauses contained in the trust. Both spouses are usually trustees but one can serve as sole trustee in the event of a incapacity. There are also durable powers of attorney which enable you as your spouse’s agent to take over the finances and sell the house. In addition, powers of attorney for health care are included in our revocable living trust package that allow you to make decisions about your spouses’s health care including life support and other measures. Contact us at Pinkerton, Doppelt, & Associates,LLP to set up a free consultation about living trusts.

You would think that people who have practiced law would know the benefits of a well drafted estate plan. I guess it is like the old adage that “the cobbler’s son has no shoes.”

Who knows how many lawyers in this country do not have a will or a trust. Abraham Lincoln, a lawyer before he became President, died intestate (without a will). Maybe like most of us he wasn’t anticipating dying at the age of 56.

Some judges have died without an effective estate plan. In 1910 a Judge of the New Jersey Court of Appeals left no will with an estate of between $100,000 and $500,000.

Supreme Court Justice Warren Berger, a former Chief Justice, left a short one page will which did not have any specific powers granted to his executor and didn’t say anything about debts, expenses, or taxes. He was a lawyer who had practiced law and taught law school. He served as an assistant Attorney General in the Justice Department before becoming a Supreme Court Justice.

So you are not alone if you don’t have a will or a trust, but nonetheless it can be a costly omission for your heirs. Furthermore, the Probate Court, which writes your estate plan for you in the event you don’t, may not have the same ideas you do about where your money should go. See our prior blog post (August 2008) about all the things you can’t do without a will or a trust.

Contact us at Pinkerton, Doppelt, & Associates, LLP if you would like a free consultation about an estate plan.

If you create a will or a trust, you can make any kind of gift you want to whomever you want. You can also make stipulations that a certain event must occur for the beneficiary to receive the inheritance. Some people, for example, provide for distributions to children or grandchildren if they graduate from college or they stay off drugs.

Some more outrageous bequests or conditions have been:

A Finnish business man left 780 shares of a rubber boot company to the residents of a nursing home in Finland. That company later became Nokia, which makes cell phones, making all the nursing home residents millionaires.

George Bernard Shaw, the Irish playwright, left his fortune to the person who could create a new English alphabet. The money was ultimately shared between 5 people who created phonetic alphabets.

You’ve probably heard of Leona Helmsley, the Queen of Mean, who left $12 million in trust for her dog excluding two of her grandchildren.

Comic book writer Mark Gruenwald provided in his will that his cremated ashes be mixed with ink and used in a comic book.

In 1862 Henry Budd bequeathed money to his two sons on condition they never grow mustaches. (How would that be enforced?)

Star Trek creator Gene Roddenberry’s ashes were flown into space and shot out as the satellite orbited the earth.

But strangest of all - Juan Potomachi left over $50,000 to the Teatro Dramatico in Buenos Aires, on the condition that his skull be preserved and used in the production of Hamlet.

We can help you with whatever bequests you want in your will or trust although carrying out similar ones to those here might be difficult. Call us or e mail us at Pinkerton, Doppelt, & Associates, LLP if you need a will or a trust drafted or updated.

Most people don’t like to think about their death but it is inevitable and directions to your loved ones about your wishes can ease the burden on them, and give you peace of mind knowing that your wishes have been stated and will be carried out. As part of your estate planning, you should prepare some guidelines for your successor trustee or executor - such things as where all your important documents are, names and addresses of persons to notify of your death, your wishes concerning burial, cremation, funeral services, etc. These are often placed with your will or trust so loved ones can begin planning soon after your death.

An innovative and free on line website service, MyWonderfulLife.com can help you plan your memorial service before you pass away. You can record your wishes about your funeral, choose music to be played at your service, leave letters for loved ones, or choose quotations or biblical verses to be read. You can even write your own obituary and design your own headstone. 6 “Angels” are chosen by you who will be notified upon your death of your wishes.

If you don’t have an estate plan yet, it would be a good idea to think about that too. Pinkerton, Doppelt, & Associates, LLP offers revocable living trust packages which include the trust, pour over will, durable powers of attorney for finances and health care, deeds and other pertinent estate planning documents. Contact us if we can help.
.

Many of us in the San Diego area start the New Year by resolving to lose weight, quit smoking, or spend more time with family. The top New Years’s Resolutions are:

• Stop smoking or drinking
• Increase physical fitness
• Lose weight
• Reduce stress at home or on the job
• Spend more time with family/enjoy life more
• Get out of debt or save more for the future

A good guide to following through with your New Year’s resolutions comes from Selfhelp Magazine which outlines the 10 keys to achieving results. The author stresses such things as making your resolutions realistic, setting a timetable for your goals, and not giving up.

While you are working on these resolutions, add a resolution to get your finances and your estate plan in order. A Disney family parenting magazine has 9 steps to get off on the right financial foot in the New Year, including creating or updating your estate plan and updating your beneficiary designations of retirement accounts, life insurance policies, annuities, etc. You should also make sure all your assets that should be in your trust are in fact properly titled.

At Pinkerton, Doppelt, & Associates, LLP we can help you achieve your resolution to create or update your estate plan. Call or us or e mail us to set up a complimentary appointment to create or update your will, trust, or beneficiary designations.

Earlier this month we posted a blog about identity theft during the hollidays. Malls in North County, South Bay, Carlsbad, and Mission Valley are targets for pick pockets and thieves who look to steal purses. But did you know that even deceased persons can be victims of identity theft? The deceased are easy targets because sometimes it takes weeks or months and in some cases years for financial institutions to find out about a death. The identity of a deceased person can be stolen in a variety of ways. Some identity thieves watch the obituaries, look up death certificates, or obtain private information from health care providers, unknowing relatives, or internet genealogy web sites.

Back in 2006 in Kentucky a financial planner used the confidential data of 160 deceased persons to acquire 700 credit cards from financial institutions and scammed nearly $2 million over a three year period

Although the deceased person doesn’t have to be concerned with his or her credit rating, identity theft can cause emotional distress for the family. Identity Theft Resource Center has valuable information about how to protect yourself and your deceased loved one from identity theft. They also have an information sheet with steps to take to decrease the risk of identity theft such as notifying the credit bureaus to put a “deceased” notation in their file, obtaining a copy of the decedent’s credit report, and a list of agencies and companies to notify of the death. Sample letters can be found at the California Office of Privacy Protection.

You can also stop the junk mail by contacting the Direct Marketing Assn. There you can register to take the deceased’s name off mailing lists with their Deceased Do Not Contact List.

If your loved one had a will which needs to be probated or a trust which needs to be administered after death, Pinkerton, Doppelt, & Associates, LLP handles many of the above steps as part of their representation. Contact us if we can help with trust administration or probate.

We, at Pinkerton, Doppelt, & Associates extend to all of you, our clients, friends, and visitors to our web site, our best wishes for a wonderful and joyous holiday season and a happy and prosperous New Year.

Thank you to all our past and present clients for your patronage. We look forward to assisting you, as well as our new clients, in achieving your legal goals and objectives in the New Year. We hope you continue to enjoy this estate planning blog and our articles about various topics in estate planning and family law.

Again, Happy Holidays from all of us!

Whether yours is a small business or a larger closely held corporation, have you thought about what will happen to it when you have passed away? Many people work years to build up a successful business or practice. Sometimes the family business is the most valuable asset in an estate. Business succession planning is a critical part of an estate plan for someone with a business.

If the business is to stay in the family, you need to decide which family member or members are going to own it and who is going to run it. If you have no family members capable of running the business, is it to be sold to a stranger or run by a non family member with the family retaining ownership? These are all decisions you need to make before it is too late to plan. Some business owners don’t plan ahead because they don’t want to give up control or they want to avoid family conflicts.

If you don’t plan for the succession of your business however and you become disabled, it is too late to decide who steps in and runs your business. You need a business succession plan in place before you become incapacitated. This may include buy-sell agreements or other methods to buy out a partner or shareholder or it could include LLC corporations or LLP partnerships. It may involve transferring some ownership or control to children or other family members before you retire. Income tax or estate tax issues may be other considerations. Read the full article about the points to consider in business succession planning.

If you have concerns about how your business or practice will be handled upon your retirement, disability or death, contact us at Pinkerton, Doppelt, & Associates, LLP. We can help you understand the options and alternatives available to you in business succession planning.

Many people in San Diego make revocable living trusts the primary feature of their estate plan. You may wonder where the idea of a trust came from. Trusts haven’t just been popular in the last century. Trusts are quite old. Plato back in 400 B.C. used a trust to finance his university in Greece. The Romans also used trusts. In England they were popular beginning in the 11th century in order to protect property from abusive noblemen and the King. A trust was used to vest title to real property in a trustee who would then give it to the wife, son, or daughter upon the husband’s death. Without such a trust, the property would go the lord or the King leaving the family poor and with no land to earn a living.

Trusts came to this country with the colonists. One of the first trusts was that of Governor Robert Morris of the Virginia colony. The trust was drafted in 1765 by Patrick Henry. Thereafter, William Bingham, a Senator from Pennsylvania, said to be the richest American when the colonies gained their independence, created a trust for his vast fortune.

Trusts are popular today as a way of avoiding not the King, but probate. With a living trust, you can avoid the cost of probate, the time of probate, and the lack of privacy of probate. You also can save on estate taxes if you have a sizeable estate by having the appropriate type of trust. If you are thinking about creating an estate plan, consult the experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP to determine if a trust is right for you. The initial consultation is always free.

Several years ago researchers felt that by mid century there would be a big inheritance boom, somewhere between 41 trillion and 136 trillion dollars handed down from parents to children. Now things are different and not solely because of the economy. Here are some reasons why you may receive a smaller than expected inheritance:

1. Your parents are spending it all. Not intentionally maybe, but with the high cost of living, medical care, and long term care, their nest eggs may not be what they used to be. Nursing home costs can run as high as $60,000 a year or higher in some areas and long term health care may be too expensive.

2. Seniors are living longer. The National Center for Health Statistics said in 2004 that males who are 65 could live to be 82, females to 85. As seniors live longer, they consume more of their wealth.

3. Bigger families. Baby boomers come from families that were larger than today’s families. Parents of children born between 1946 - 1964 had an average of 3.5 children, thus leaving a smaller piece of the pie to be inherited by each child.

4. Some of the wealth of seniors today comes from sources that terminate upon death- pensions, social security, and some annuities.

5. Reverse mortgages and the economy now make it easier to drain a home’s equity. Today with the popularity of reverse mortgages, homeowners can tap into the equity in their homes and the pace is picking up with the problems in the economy.

6. The “Warren Buffet” philosophy. Warren Buffett, the world’s second richest man, believes that kids should get “just enough money to feel they could do anything but not enough to do nothing.” He intends to give most of his money to charity including the Melinda and William Gates Foundation.

7. Charitable giving seems to be on the rise in the last 50 years, particularly among the rich. As an example, last year billionaire Barron Hilton announced he was giving 97% of his estimated $2.3 billion estate to charity.

Even if you are not going to be receiving much of an inheritance, you should still talk to your parents or grandparents about their estate and be sure they have planned ahead by creating a living trust with powers of attorney and health care directives. Probate can be expensive and without a trust, an estate of more than $100,000 will have to be probated. For assistance with an estate plan, contact us at Pinkerton, Doppelt, & Associates, LLP.

The San Diego County Courts hear many cases where a conservatorship is sought of an individual’s estate or person. When an individual cannot take care of his or her financial or personal affairs, it may be necessary to have the probate court appoint a conservator of the estate or of the person. A conservator of the estate is responsible for handling the finances of the conservatee. The individual appointed has broad powers to manage assets, write checks, make investments, etc. A conservator of the person is an individual appointed to make decisions about the conservatee’s personal needs such as health care, residence, food, clothing, etc.

A conservatorship can be an expensive process and may not always be necessary. Before the court appoints a conservator for an individual, it must be shown that no other alternatives are available to the proposed conservatee. These alternatives are durable powers of attorney, trusts, or the voluntary acceptance of assistance.

1. A power of attorney is a written document whereby one person (the principal) appoints another ( the agent) to act on his behalf upon incapacity. Powers of attorney for finances and for health care may provide a viable alternative to a conservatorship.

2. If the individual had a properly prepared revocable living trust, the successor trustee can step in and manage that individual’s affairs if the trustor becomes incapacitated. This needs to be done in advance of the incapacity however. Once the proposed conservatee lacks capacity, a trust cannot be created.

3. If the person who needs help with personal decisions will accept the help of relatives or friends about such things as medical care, food, clothing, and shelter, a conservatorship of the person may be avoided.

For more information about setting up a conservatorship or avoiding one by the preparation of a revocable living trust, contact us at Pinketon, Doppelt, & Associates LLP.

This summer Governor Schwarzenegger signed a bill which will protect pet trusts. The bill (SB 685) makes pet trusts enforceable. The bill was supported by the SPCA (Society for the Prevention of Cruelty to Animals) which estimates that over half of American families have at least one pet. The bill removes the discretion of the trustee in carrying out the trust and allows the court to appoint a caregiver if the trustee doesn’t want to act. The bill actually repeals a section of the Probate Code ( Section 15212) which made pet trusts honorary and not enforceable by law.

You may ask what types of pets are affected by this bill? The new legislation provides that for purposes of this code section, an “animal” means a domestic or pet animal for the benefit of which a trust has been established. Cats, dogs, birds, and horses would be covered. If an owner wanted to establish a trust for some other domestic pet such as a python snake (which can live 40 years) or a pot bellied pig, presumably they would be covered also. It is hoped that the new law which goes into effect in January 2009 will reduce the burden on pet shelters, protect defenseless animals, and guarantee that the wishes of pet owners are carried out.

To incorporate pet trust provisions into your estate plan, call us or e mail us at Pinkerton, Doppelt, & Associates, LLP to schedule a complimentary consultation. We can also amend existing trusts or create a revocable living trust with “pet” provisions.

A big mistake some people make is to name their minor children the beneficiary of a life insurance policy or other account with a beneficiary designation. If you die and your children are not 18, the minor won't have the authority to take control of the proceeds. The probate court will have to appoint someone as a guardian of the estate. (This is different from the guardian of the person who is the individual who physically cares for the child.) Setting up a guardianship of the estate will take time and money and probably require the services of an attorney. The Court will apppoint an adult to take over the management and control of the minor's inheritance until the minor becomes an adult. The Court has no authority however to spread the inheritance out over a number of years so this may result in a child receiving substantial money at an earlier age than the parents may have wanted.

If you have minor children and want to make them beneficiaries of life insurance policies, you should have a revocable living trust set up and make the trust the beneficiary of the proceeds. With a trust, the insurance company can transfer the proceeds directly into a trust account to be distributed to your minor children according to the terms of your trust. In this way you can insure that your minor beneficiaries will not have to have a guardian of the estate appointed and you can spread the distributions out over whatever intervals you want.

Also review your life insurance designations every few years to be sure you have the primary and secondary beneficiaries up to date. Changed circumstances in your life such as marriage, divorce, deaths, etc. may require that you make a change in beneficiaries.

If we can help you set up a revocable living trust or review your beneficiary designations, please call us or e mail us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation.

If you have substantial assets, you may want to consider making a gift before the end of the year. The annual gift exclusion does not carry over into the next year, so you will lose your annual exclusion if you don’t use it before the end of 2008.

In 2008 you can make gifts up to $12,000 per person to as many people as you want with no gift tax. A single person could make a $12,000 gift to as many individuals as he or she wants. A married couple together could give $24,000 to any one individual. So for example, a married couple could each give gifts of $12,000 to their 3 children ($72,000 in total) or to their 2 grandchildren ($48,000 total), etc. You can give cash, stocks, bonds, real property, partnership interests; just make sure the gift is of a “present interest”, i.e. one they can use now as opposed to sometime in the future.

In addition to the annual gift tax exclusion, you can make tax-free gifts by paying the tuition and medical expenses for relatives or even friends. Gifts such as these have no monetary limitation. Send the money for tuition directly to the school. Payments for books or room and board do not qualify nor does giving the money directly to the student to pass on to the school.

You can also pay unlimited medical bills if you make the payments directly to the health care provider and the medical expense is one that would qualify for an income tax deduction. You can also pay medical insurance premiums for another person.

Lastly, remember that gifts to charity are never subject to gift or estate tax. If you need help with any end of year gift strategies, contact us at Pinkerton, Doppelt, & Associates, LLP for a free in-house consultation.

The San Diego Probate Court has many cases involving will and trust litigation. Wills and trusts can become the subject of litigation even when prepared by an experienced estate planning attorney. Issues which can become the subject of a will contest or trust litigation can be issues relating to the successor trustee or executor, codicils or amendments, the distribution provisions, or the management of the estate assets.

Here are some red flags which tend to trigger litigation that should be addressed at the time you draft your will or trust:

1. An "unnatural" disposition of an estate. Clients obviously have the right to leave their assets to anyone they wish however an unusual or unnatural disposition is more likely to be challenged. A “natural” disposition would be leaving your estate to your wife and then to your children. What is not “natural” is disinheriting a child, leaving substantial assets to a non-family member or to someone who has provided care to you, or leaving your entire estate to a new spouse, charity, or a pet to the exclusion of other heirs.

2. The timing of the estate planning document. Wills or trusts done just prior to death may simply be because the decedent realized the necessity for an estate plan, however changes to wills or trusts on the individual’s “deathbed” may raise questions of competency. There may be challenges as to whether the decedent had capacity, was unduly influenced, or under duress.

3. Drafting your will or trust at the insistence or with the assistance of an individual who gets more than other beneficiaries may raise similar concerns.

4. Favoring one child over another or a new spouse over your children from a former relationship. This may be a “natural” disposition of your estate but if someone feels slighted or omitted from a will or a trust, there is a potential for litigation.

The best way to avoid litigation over a will or a trust is to make sure your documents are prepared by an experienced estate planning lawyer. A properly drafted document should have a no contest clause although even that clause may not prevent a contest. You may want to consider rather than disinheriting an heir outright, giving that person a nominal gift to discourage a will or trust contest. Lastly, if you are creating an estate plan with an “unnatural disposition” you may want to consider having the signing of the document videotaped.

Will and trust litigation is costly and can be emotionally draining for everyone involved. For help creating your estate plan to avoid future litigation, contact us at Pinkerton, Doppelt, & Associates, LLP. We can also assist with representation in any will or trust litigation.

The holiday season in San Diego has many people going to the local malls and retail stores. Identity theft is on the rise and occurs more frequently over the holidays. Identity theft occurs when someone uses your name, social security number or other personal information to commit fraud. It is estimated by the Federal Trade Commission that as many as 9 million Americans have their identity stolen each year. The San Diego based Identity Theft Resource Center estimates 15 million Americans have their identity stolen each year and California is one of the top states for identity theft. Identity theft is committed in a variety of ways such as stealing your purse or wallet, going through your trash, phishing, skimming, or using false pretenses to obtain your personal information.

Here are some signs that you might be at risk to have your identity stolen:

1. You carry your social security card in your purse or wallet.
2. You carry all your credit cards in your purse or wallet, even ones you don’t regularly use.
3. You throw away banking statements, credit card statements, or offers for credit cards without shredding them.
4. You have your social security number written down in your checkbook or it is on a health care insurance card you carry with you.
5. If people ask you for your social security number, you always provide it without protest or inquiry.
6. You have an unlocked unsecure mailbox.
7. You give out personal information over the phone.
8. You haven’t reviewed your credit report recently.

Identity theft can cost you time and money and destroy your credit. If your will or trust or other estate planning documents are easily accessible to strangers, you also may be vulnerable as they often contain social security numbers, bank account information, etc. You may want to invest in a shredder to destroy personal information. Also consider buying a safe or locked box to keep your important documents in, however make sure your loved ones know where the key is so that they can easily access powers of attorneys if you become incapacitated.

If you are reading this, you came to our Pinkerton, Doppelt & Associates, LLP website and clicked on “BLOG” at the top of the home page or you searched for information on a topic that was featured on our blog. You can subscribe to our blog by clicking the orange “subscribe” button on the left side of this page or the blue “Go” button to subscribe by email. Subscribing allows you to get a live “feed” and read all of our blog posts as they are published.

Blogging is becoming more and more popular every day. A blog, for those of you that don’t know, is a nickname for Web Log, and allows individuals, businesses, law firms, and anybody else to publish information, comments, or opinions about any topic they may be interested in. Here are some interesting statistics on blogging:

∙ Currently there are 15.5 million active blogs on the internet.
∙ There are over a million blog posts each day.
∙ Japanese language blogs are more prevalent than any other language (37%)
∙ More men than women blog.
∙ The majority of bloggers are over the age of 35 and are college educated.

At Pinkerton, Doppelt, & Associates, LLP we have blogs dating back to 2002 on estate planning issues such as wills, trusts, powers of attorney, probate, conservatorships, guardianships, and long term planning. Please contact us if we can assist you with any of these issues and if you haven’t already done so, take the time to subscribe to our blog. It’s free and has current information on legal topics and other matters important to your life.

According to the Alzheimer’s Association, there are an estimated 5 million Americans suffering from Alzheimer’s disease. Fortunately, San Diego has a lot of resources for families living with the disease. The George G. Glenner Alzheimer’s Family Centers is one resource that helps families with adult day care, respite programs, and support groups. The Southern California Caregiver Resource Cener also provides assistance in the form of support groups, seminars, respite care, etc. Information on geriatric care managers is available through the National Association of Professional Geriatric Care Manager’s Association.

Alzeimer’s eventually results in disorientation, memory loss, cognitive dysfunction, and inability to take care of oneself and one’s finances. Planning ahead can be vital for family members caring for the Alzheimer patient. Once the individual loses the capacity to make financial decisions, it is too late to execute important documents like powers of attorney and wills or trusts. All such documents require that a person have the ability to understand what they are signing and the legal effect of signing the document. If a person becomes incapacitated before someone can be named to make important decisions, the only alternative may be a conservatorship which is costly, requires court approval, and takes time.

If you are coping with a person who has Alzheimer’s or any other type of dementia, take advantage of all the resources available. Contact us at Pinkerton, Doppelt, & Associates, LLP if we can help with powers of attorney or other legal documents to enable other individuals to take over health care and financial decisions when the person becomes unable to do it personally.

If you live in San Diego, there is a lot of free information available to you on a variety of legal issues. Here are some “clicks’ that may answer many questions you have:

1. Our website at Pinkerton, Doppelt, & Associates, LLP has many articles in the area of estate planning and divorce. Our estate planning blog has current postings as well as archived postings going back to 2002.

2. The San Diego County Clerk/Recorder's office has information on its website about recording documents and you can also download samples of commonly used forms such as affidavits of death, grant deeds, quitclaim deeds, property tax exemption forms, and preliminary change of ownership forms. You can access information about your property tax bill or download an application to lower your propery taxes. You can also check the Grantor/Grantee index online for deeds and other recorded documents and order copies on line or pick them up at one of the offices in Kearney Mesa, San Marcos, downtown, Chula Vista, or El Cajon.

3. The California Courts Self-Help Center has information about how to find lawyer referral services, where all the courts are located and their calendars, and frequently asked questions about a variety of topics. There is information about small claims court, conservatorships, elder abuse, landlord/tenant issues, divorce, and traffic tickets. You can even download the Judicial Council legal forms and get information on how to fill them out.

4. At the California State Bar website you can find a lawyer, look up a specific lawyer’s disciplinary record, and get basic information about a number of legal topics. Consumer pamphlets are available on all sorts of topics such as estate planning, probate, small claims court, getting arrested, minors and the law, seniors and the law, and divorce and child custody.

If you need information on estate planning issues, remember Pinkerton, Doppelt, & Associates, LLP offers a free in-house consultation. E mail us or call us with a question or to set an appointment.

There are many different types of trusts which San Diego couples may create as the cornerstone of their estate plan. Prior to 2000 when the exemption for estate taxes was $650,000 many couples had A/B trusts prepared. These were also called Bypass Trusts, Marital Trusts, or Exemption Trusts. These types of trusts call for the initial trust to split into two or more trusts after the death of the first spouse in order to reduce or eliminate the federal estate tax. Today many couples still have this type of trust. Couples with children from prior relationships also may have this type of trust which requires a split or division in trust assets after the first death.

Couples may also have a disclaimer trust which requires the surviving spouse to disclaim assets within nine months of death in order to take advantage of the federal estate tax exemption for couples. There are also so-called option trusts which place a duty on the surviving spouse to value the estate after the first death and only split the trust into sub trusts if necessary to take advantage of the federal estate tax exemption. All of these types of trusts require that after the first death, some steps be taken to comply with California law, preserve the federal estate tax exemption, and change title to assets. This is called trust administration.

If the trust is one which requires a division into two or more sub trusts, the assets in the estate need to be valued as of the date of the first death, then the assets allocated between two or more trusts, and new deeds prepared for real property. If the original trust is not divided at all after the first death or the assets allocated improperly, tax benefits can be lost. Also there may be financial losses to the children of the couple or other beneficiaries. Sometimes in the aftermath of a spouse passing away, these details may understandably be overlooked.

If you need help figuring out what to do after your spouse dies, we can help. The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can review your trust and do whatever trust administration your trust requires. Our initial consultation is complimentary.

Most counties in California including San Diego have suspended the issuance of marriage licenses for same sex couples after California voters passed Proposition 8 on Tuesday. Proposition 8 amends the California constitution to limit marriage to a union between a man and a woman.

Back in May of this year, the California Supreme Court ruled that such a ban was unconstitutional. Approximately 18,000 marriages have taken place between June when the decision became final through November 4. What happens to the validity of those marriages? California Attorney General Jerry Brown has said that since the amendment will not be retroactive, those marriages will be valid. He also has indicated the State will defend the validity of those marriages in court if they are challenged.

Expect there to be legal challenges to the Proposition. Attorney Gloria Allred, who filed the original suit that resulted in the Supreme Court ruling, has in fact already filed a lawsuit on the basis that the amendment authorized by the passage of Prop 8 is unconstitutional. A coalition of gay rights advocacy groups and the American Civil Liberties Union have also petitioned the California Supreme Court. Some pundits believe the issue may go all the way to the U.S. Supreme Court.

Regardless of the legal wrangling which will continue, same sex couples should continue to make estate planning a priority so that if they become disabled or pass away, their wishes will be honored. There also may be some potential issues that arise in the interim if a same sex spouse passes away and either has no will or has a will or trust leaving assets to their spouse.

No doubt family law issues will also develop as the courts sort out the legal ramifications of the passage of Prop 8. Same sex couples can continue to register as domestic partners to receive some benefits but there are a lot of protections granted to heterosexual couples under federal law that remain in question for same sex couples.

If you are a same sex couple needing more information on estate planning or family law issues, contact us at Pinkerton, Doppelt, & Associates, LLP for a free confidential consultation.

Pinkerton, Doppelt & Associates, LLP has been a member of the San Diego Better Business Bureau since 2001. Our practice is in the areas of estate planning (trusts, wills, probate, trust administration, conservatorships, guardianships, and Medi-Cal planning) and family law (divorce, adoptions, child custody, child support, and pre-nuptial agreements). Our firm has been assisting San Diego families for over 10 years.

Recently the BBB revised the rating system to use a scale of A+ to F to rate businesses. We are pleased that our firm was given an A+ rating as of October 29, 2008.

16 Factors went into the A+ rating, using objective information that is obtained, verified, and evaluated by the BBB. Some of the important factors the BBB considers are:

• the length of time in business
• required licensing
• the number and nature of complaints
• whether the business responded to the complaint and whether it was resolved in a timely and good faith manner

You can view the other factors and the entire report on Pinkerton, Doppelt, & Associates, LLP at the BBB website.

Contact us by phone or e mail with your estate planning or family law questions.

San Diego is home to many retirees and others who love to travel. The U.S. Dept. of State has useful information about traveling abroad. At their website you can access information about passports, registering your travel abroad, taking medicines on your trip, customs and import information, and immunizations required for various areas.

You can also check the website for what travel warning and alerts are in effect for a specific country. A Travel Warning is a warning against travel to certain countries where a condition may make the country dangerous or unstable. Currently, some of the countries listed with Travel Warnings are Pakistan, Iran, Iraq, Afghanistan, Yemen, Colombia, Nepal, and Somalia.

Travel Alerts are issued for usually short term conditions such as a natural disaster, a coup, or acts of terrorism. Countries under a Travel Alert at this time are Mexico, China, Comoros, and the Arabian Peninsula.

Before you take a trip abroad it is also a good idea to make sure your estate planning documents are up to date. If you need a will or a trust or want to make changes to your existing documents, don’t wait until the last minute to contact a lawyer. If you need assistance, contact us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation.

Vice Presidential candidate Sarah Palin’s 5 month old son who has Down Syndrome has caused an increase in public awareness about children with special needs. Special needs children are those that need extra care whether because of a developmental disability, autism, cerebral palsy, mental retardation, or other physical or mental condition. Many parents in San Diego County have children with special needs and know all too well about the extra care they require, the government benefits they rely on, and the financial challenges they face.

Many families with special needs children need to rely on Medi-Cal or Social Security to help with the high cost of health care. This financial support can continue throughout the child’s life. Parents and grandparents of special needs children and adults may want to provide for their disabled loved ones in their will or trust but they do not want to jeopardize the individual’s eligibility for public benefits. A Supplemental Needs Trust is the answer.

A Supplemental Needs Trust (often called a Special Needs Trust) enable a person with a physical or mental disability to have assets held in a trust and those assets will not be considered countable assets for purposes of qualifying for certain government benefits. Supplemental needs that can be paid for by the trust may be such items as special medical equipment, dental needs, eyeglasses, recreation, entertainment, transporation, computer equipment, or special dietary needs.

Parents or other family members of disabled individuals who want to provide for a disabled beneficiary can establish a supplemental needs trust as part of their own estate plan and the trust will be established upon their death.

For more information on special needs trusts, read the article on our website. The law firm of Pinkerton, Doppelt, & Associates, LLP can incorporate a special needs trust into your estate plan or prepare a “stand alone” special needs trust, tailored to fit your concerns about your special needs beneficiaries. Call us or e mail us if we can help.

The simple answer is "you can" but why would you want to? You may have seen the commercial on TV where a man is on the phone with his doctor who is telling him how to operate on himself and the man says “shouldn’t you be doing this?”

There are many web sites today that offer inexpensive estate planning documents you can download. There is also software available to write your own will or trust. The problem with doing it yourself is that you don’t have the experience, training, and knowledge to know whether you have done a good job and the effect of not doing a good job can be devastating. Many “boilerplate” trusts and other documents contain language that is inappropriate for your situation. Estate planning is not "one size fits all."

When you hire an experienced estate planning lawyer you are not only paying for the document itself but the training and experience that goes into a properly drafted document. The attorney knows what questions to ask to assist you with decisions such as whether you want clauses about distributions to minors and at what intervals, duty to provide accounts and reports, how to distribute assets if a beneficiary predeceases the trustor, and what clauses are necessary to protect the estate from estate taxes. Deeds need to be prepared to record your real property with the County Recorder and a Preliminary Change of Ownership form needs to be filled out correctly to avoid reappraisal.

At Pinkerton, Doppelt, & Associates, LLP we offer a complimentary consultation to find out what your goals are and make sure the appropriate clauses are in your revocable living trust. We also record deeds to put your real property into your trust and assist you with funding your trust. Read more about what is included in our revocable living trust package and give us a call.

When someone dies, estate taxes have to be paid if the estate is large enough. Under the current law, the federal estate tax exemption is $2 million. This means that no estate taxes will have to be paid on estates under $2 million and for couples, assets of less than $4 million would be exempt from estate taxes.

The exemption is set to increase to $3.5 million in 2009, disappear entirely in 2010, and revert back to $1 million in 2011.

Now that the Presidential candidates have been narrowed to McCain and Obama, where do they stand on this issue? John McCain is in favor of raising the exemption to $5 million. Senator Obama proposes a $3.5 million exemption. The other difference is that McCain would cut the tax rate from 45% to 15%. Obama is in favor of keeping the tax rate at 45%.

So it does appear that no matter which candidate is elected, the country will continue to see a federal estate tax exemption which will keep the majority of Americans from having to pay estate taxes upon their deaths. It has been estimated that in 2009, only 1 in 600 estates will owe estate taxes.

For couples to both take advantage of the exemption for estate taxes, they need a revocable living trust with appropriate language. There are many other advantages of a trust even if you are not concerned about estate taxes. If you need a trust and corollary documents prepared, contact us at Pinkerton, Doppelt, & Associates, LLP to schedule a free in-house consultation.

San Diego, like many other large cities is on the cutting edge of technology and has a number of sperm banks, egg banks, and cryopreservation companies for storage of reproductive material. With the advent of techniques such as invitro fertilization and cryopreservation of sperm, eggs, and embryos, children may be born many years after the death of a parent raising a variety of legal issues.

A child that is born after the death of one or both parents is referred to as a “posthumous” child. The law in California recognizes children born posthumously by specifically providing in the California Probate Code Section 248 - 249.8 that such children have the same inheritance rights as children born before the death of their parent.

The new reproductive technologies can potentially create a number of other problems. An example is whether a child born from frozen sperm or embryos can qualify for social security benefits. A U.S. Court of Appeals for the Ninth District has said they do get social security benefits. As modern technology evolves, the law is going to have to address these and undoubtedly other issues.

If you have genetic material stored such as sperm or eggs for posthumous reproduction, you should mention this to your estate planning lawyer. The Probate Code requires that the decedent specify that his or her genetic material can be used after death for conception. Issues could also arise later as to whether some assets held in a trust for example, would have to be held back for distributions to posthumous children. If you have any questions about posthumous children or any other estate planning issue, call us or e mail us at Pinkerton, Doppelt, & Associates, LLP.

When you purchase property in San Diego County, you will have to specify how you are going to hold title. Title is the evidence that you are the owner. The form of ownership is called “vesting”. The escrow company will ask you how you want to hold title so the deed to your new property can be prepared. Here are some of the more common forms of holding title.

Sole Ownership
When you hold title as the sole owner, you own the entire interest. Usually sole ownership is for single individuals. A man or woman who has not been married may hold title as “John Doe, a single man.” A man or woman who was previously married but legally divorced might hold title as “Jane Doe, an unmarried woman.” If you are married and want to take title in your name alone, your spouse must relinquish all interest in the property since real property conveyed to a married couple in California is presumed to be community unless otherwise stated. Title in that case might read “John Doe, a married man, as his sole and separate property."

Co-Ownership

Joint Tenancy
This form of ownership occurs when two or more individuals, who may or may not be married, want to own property together in equal interests. With joint tenancy with right of survivorship, when one joint tenant dies, the other joint tenant becomes the owner of the property by operation of law rather than the property passing to the deceased joint tenant’s heirs. As an example, title could read "John Doe and Jane Doe, husband and wife, as joint tenants.” Many couples who purchased property years ago may be holding their property in joint tenancy.

Tenancy in Common
Tenants in common are two or more owners who own an undivided fractional interest. As an example, one owner may have a 1/3 interest and the other a 2/3 interest in the property. Two owners may each own ½. Each owner can use and enjoy the entire property and each owner may sell or give his interest away or leave it to someone else upon their death. An example is “John Doe, an unmarried man, as to an undivided 1/3 interest and Jane Doe, a single woman, as to an undivided 2/3 interest, as tenants in common.”

Community Property
If you are a married couple, you may hold title as community property. In California real property conveyed to a married man or woman is presumed to be community property unless otherwise stated. Each spouse has a ½ interest in the property and may leave that interest to the other spouse or anyone else. Title would be held as “John Doe and Jane Doe, husband and wife, as community property.”

How you hold title can have important legal consequences. When you create a living trust, you should put your home and any other real property in the name of the trust. If you have any questions about how to hold title in your situation, you may call us or e mail us with questions. At Pinkerton, Doppelt, & Associates, LLP we can also assist you with the preparation of a living trust package, including trust transfer deeds.

If you die with a will or intestate (without a will), the probate court has no discretion to withhold money from your legal heirs if they are 18. There are many 18 year olds who are not capable of managing significant amounts of money at that age. One way to insure that your children do not receive distributions from your estate at such a young age is to create a children’s trust or build one into your own revocable living trust. In either case you can be creative as to when your children receive distributions and for what purposes.

A trust can structure your child’s inheritance by making specific provisions for the use of trust assets. As an example you may provide that upon your death, a family member will be the successor trustee who will use the trust assets for the “health, education, maintenance, and welfare” of the child. Will that include money for vocational training or starting a business? Will the trustee have the discretion to buy a car for the child to go to work or school? These are some issues your trust provisions can address.

What about distributions when the child becomes an adult? You can specify in the trust that distributions be made at age 25, 30, or 35 or any other intervals you wish. You can specify that a distribution be made upon graduation from college, or that there is to be no distribution at all until the child turns 35 or 40.

You also have to decide what happens if the child dies before all distributions are made. Do the trust assets pass to their children or to the other beneficiaries or perhaps to charity? Another decision is whether the trustee of the trust should make a yearly accounting of the trust assets. Some people put spendthrift provisions into the trust ( preventing the child from borrowing from the trust) or provisions about substance abuse.

A trust for your children can put your mind at ease about the financial future of your children. If you would like a children’s trust set up or one incorporated into your own living trust, call us or e mail us at Pinkerton, Doppelt, & Associates, LLP to set up a complimentary appointment

Are you the Executor or the Successor Trustee of a will or trust in San Diego? Are you faced with the dilemma of how to divide up personal effects of the deceased? How to divide personal property (furniture, collectibles, jewelry, cars) upon someone’s death can be a harder problem than distributing the rest of the estate. Many wills and trusts provide for distribution to heirs in equal amounts or equal shares, but how do you determine who gets what? What if more than one heir wants a particular item? How is the property valued, especially if its real worth is more sentimental than anything else?

There is an interesting alternative being offered by an auction company called eDivvyUp. This is an online auction site which can assist executors or beneficiaries deal with distribution of personal property. This company will inventory the items of personal property, photograph them, and then the beneficiaries are invited to participate in the auction with “points” they are assigned. At the end of the auction the property is distributed to the highest bidder.

At Pinkerton, Doppelt, & Associates, LLP we can assist you with the division of personal property and any other matter relating to probate or trust administration. You may call or e mail us to set up a complimentary consultation.

Do San Diegans fit the national statistics on Estate Planning?

Alhough there are no statistics specifically for San Diego County, a study done nationally in 2007 found that over half (55% ) of all adult Americans do not have a will or other estate plan. Of non-whites, the lack of a will is even more pronounced:

Only 32% of African American adults have wills
Only 25% of Hispanic American adults have wills compared to
52% of white American adults.

The study also found that 41% of American adults have health care directives. This is up from several years ago perhaps because of news coverage about such cases as the Terry Schiavo case in Florida.

Reasons for not doing an estate plan:
1. Ignorance is bliss. 10% say they don’t want to think about dying or becoming incapacitated.
2. Where to begin? 9% say they don’t know who to consult about an estate plan
3. No Assets to worry about. 24% say they don’t think they have enough assets
Possible other reasons are procrastination: I know I should do it but don’t seem to get around to it.

If you fall within these categories and do not have a will or a living trust, contact us at Pinkerton, Doppelt, & Associates. We offer a complimentary consultation in the office, contact us by e mail.

After your revocable living trust is prepared, there often arises the need to amend your trust. It could be that you want to change your successor trustee, change beneficiaries, or that new changes in the tax laws require some new or revised provisions. Some people think they can cross out information on their trust and make changes on the original trust document. This should never be done as the changes are not notarized and it may be difficult to prove that you were the one making the changes. An amendment to your trust should be prepared and notarized with the same formalities as your original trust.

You may also want to have an estate planning attorney review your trust to see if an amendment is appropriate. Some trusts become irrevocable after the death of the first spouse and depending on the trust language, may not be amended.

At Pinkerton, Doppelt, & Associates, LLP, we can advise you as to whether your trust may be amended and with the preparation of amendments. We offer a complimentary consultation and you may call or e mail us for an appointment.

You don’t have to be rich to need a trust. If you own your home in San Diego where the cost of the average home is high, you need a trust to avoid probate. Even without a home, if you have total assets over $100,000 you need a trust to avoid probate.

You don’t have to be rich to afford a trust. Even with this economy, a trust is so important that it may warrant cutting back on other things to afford it.

1. Painless Savings Techniques: One technique for savings is to put every $5 bill you receive into a jar or tucked away in a drawer. You would be surprised how many $5 bills you receive in a month. You can easily save several hundred dollars a month if you faithfully make this a habit. Some people deposit the change they find in their pocket or wallet into a jar. Taking those jars to the bank and converting them into money to set aside for a trust is a way to save painlessly. The Keep the Change Program at Bank of America rounds up every purchase to the nearest dollar amount and transfers the difference into your savings account. The bank will even match your savings for the first 3 months.

2. Cut back on your mocha frappachino or carmel machiato you have been drinking everyday. It has been estimated that a person consuming a designer coffee drink once a day spends over $100 a month. If you can’t give up your coffee, how about bringing your lunch to work for a while. You can easily spend $10 or more on lunch eating out. These amounts may seem insignificant but they add up!

3. How much do you spend annually on Christmas presents for your family? Some families spend $50 to $100 per person. What if you bought something a little less expensive and spent the money on a trust. After all, the creation of a living trust is really a gift for your heirs. Such a gift will later be appreciated more than a video game or sweater they probably won’t like anyway.

4. Cut back on dining out or other monthly outing. A trip to your favorite sushi bar or nice restaurant can easily cost $100 - $200 per couple. A trip to the ball game for the whole family can cost more than that. What if you cut back on some of these outings for 6 months?

5. Have a garage sale and put aside the proceeds to help fund a trust. Many people have a garage full of garage sale items and once you have a sale, what do you do with the money? Earmark the proceeds for something that will last a lifetime (literally)!

A revocable living trust can be affordable for most people even if you have to get creative. At Pinkerton, Doppelt, & Associates, LLP, we can’t assist you with the garage sale but we can help you create an estate plan. Call us or e mail us for a complimentary consultation.

Do you have a piece of property in San Diego County that you want someone to reside in as long as they live and then pass the property to someone else? A life estate is typically an ownership interest where the owner of real property gives a “life estate” to another so that person has the right to live in a home for his or her life. It might happen in a situation where two people marry late in life. The husband sells his home and they move into the wife’s home. When the wife passes away, she wants the family home to go to her children but she also wants her husband to be able to live in the home if he outlives her. The wife can give a life estate to her husband so that the husband can live in the home until his death. Upon his death, the house goes to the wife’s children.

A life estate can be a valuable estate planning tool to keep assets in the family, such as the family home, but there can also be problems if they are not prepared correctly. The document creating a life estate needs to be drafted carefully to avoid issues later such as who is responsible for property taxes, insurance, maintenance, and repairs. What if the costs of repairing the home are high and the husband does not want to spend the money on a house that will be going to his wife’s children? Does the life estate include furniture and other household items? What if the husband remarries?

If you want to give someone a life estate in a piece of property you own, we can assist you with the proper documents to accomplish that at Pinkerton, Doppelt, & Associates, LLP. Please feel free to call us or e mail us about this or any other estate planning issue. An in-house consultation up to 30 minutes is free.

San Diego County is home to many members of the military stationed at Camp Pendleton, MCRD, MCAS Miramar, and the various Navy facilities such as 32nd Street Naval Station, Navy Submarine Support Facilities and Naval Base Coronado.

When a member of the military gets orders to deploy out of the area, they often need to get their estate planning and financial affairs in order. Some of the things to think about are a power of attorney for finances, a will or a trust, a designation of guardians for your minor children. If you are a single parent or both parents are deployed, you may want to execute a document naming a temporary guardian for your children. This may also include authorizations to permit the guardian to obtain medical care for your children in your absence.

JAG attorneys on the base often provide some of these documents for military personnel but if you have a unique situation, it may be worthwhile to consult a private attorney. Situations that may make this advisable are children with special needs such as autism, mental retardation, cerebral palsy, or any other physical or mental disability that would require special provisions in your estate plan. Real property in more than one state or an estate in general that is over $100,000 may warrant a revocable living trust. Also if you have a trust prepared in California, it is valid in any other state you might subsequently live.

If you need assistance with an estate planning matter, call us or email us at Pinkerton, Doppelt, & Associates, LLP for a complimentary in-house consultation. Also if a family member dies who is in the military and there is an estate to settle, we would be pleased to meet with you about what to do next.

Many San Diegans have timeshare properties out of state in Hawaii, Colorado, and Florida as well as right here in San Diego in the beachfront communities of Coronado, La Jolla, Mission Beach, Carlsbad, and Oceanside. If you plan to leave your timeshare properties to your heirs you need to understand several things.

There are two types of timeshare properties - deeded and non deeded. With the non deeded form of ownership you usually are buying a license to use the property or a lease or membership interest that allows use of the property for a number of years. You may or may not be able to pass this on to your heirs. With a deeded timeshare you actually have an ownership interest in the property and have a deed showing that interest.

If you have a revocable living trust, a timeshare, like any other piece of property, has to be transferred into your trust. If it is a deeded timeshare, this will be done with a trust transfer deed. Many trust administrations or trust distributions are delayed because individuals forget to transfer their timeshare properties into their trust.

With a will as your estate plan, your entire estate will have to go through the probate procedure with its accompanying time and expense. If the timeshare property is out of state, a second probate called an “ancillary probate” will have to be established, resulting in additional probate fees. Ownership of out of state property is a good reason to have a trust rather than a will.

With either a will or a trust, if you think your children will be fighting over the use of the timeshare, consider leaving it to only one beneficiary so that the timeshare does not have to be sold to distribute it.

If you have questions about your vacation properties and whether they are properly transferred into your revocable living trust, we can assist you at Pinkerton, Doppelt, & Associates, LLP You can also call us or e mail about any other estate planning issue.

There are many reasons why people delay creating an estate plan. One of the primary reasons is that it just doesn’t rise to the top of their “To Do” list. It is something they know they should do but they think they have plenty of time to do it. How much time do you have to procrastinate?

A fun life expectancy calculator lets you plug in information about your family history, accidents, cholesterol, use of alcohol, diet, lifestyle etc. to come up with a your life expectancy. Hoever, don't let the fact that you have another 30 or 40 years to go prevent you from creating an estate plan now.

At Pinkerton, Doppelt, & Associates, LLP we can help you create an estate plan now and it will be one less thing to take care of on your "To Do" list. Call us or e mail us for a free in-house consultation.

Reverse mortgages have become extremely popular in California and especially in San Diego communities with a large senior population such as Rancho Bernardo, Poway, Ramona, and Oceanside.

If you have a reverse mortgage already or are thinking about getting one, useful information about reverse mortgages is available fromthe U.S. Dept. of Housing and Urban Development (HUD). AARP also has information and a list of questions to ask yourself before making the decision to apply for one.

Remember from an estate planning perspective, the lender may ask you to take your home out of your living trust to accomplish the reverse mortgage. Make sure your home is put back into the trust after the mortgage is in place. This means that there is a grant deed or quitclaim deed showing the property titled in your name as Trustee. When the deed has been recorded with the County Recorder, you home is then “put back” into your trust. This process may be done by whoever handled the mortgage paperwork but it is a good idea to verify that it has in fact been done since your home is often the major asset of your estate. You do not want to pass away with a major asset left out of your trust.

If you need help transferring property back into your trust and recording the necessary deed, contact us at Pinkerton, Doppelt, & Associates, LLP. Feel free to call us or e mail us for a complimentary in-house consultation about this or any other estate planning issue.

In San Diego many people are going “green” - trying to conserve our planet’s resources and natural environment for the next generation. Now there is growing trend toward “green burials” where the body is returned to the earth to decompose. No chemicals are used to embalm the body and it is laid to rest in a shroud or biodegradable casket. The first “green cemetery” in California is in Mill Valley in northern California. At Fernwood Cemetery they use no embalming fluids, only biodegradable caskets, and trees and scrubs as markers. In San Diego county, the funeral services company, Thresholds, in Lakeside, provides in home funerals and ecologically friendly burials.

According to Wikipedia, U. S. cemeteries deposit into the ground 827,00 gallons of embalming fluid, 30 million feet of hardwood, 90,000 tons of steel, 2700 tons of copper and bronze and over 1 million tons of concrete each year. Even cremation, although better for the earth than burial, leaves carbon ash that doesn’t decompose. The “green burial” movement is trying to alleviate this impact on our environment by encouraging burials without embalming, caskets that will disintegrate, and even cemeteries with no marble markers, metal vaults, or lawns that require fertilizer and pesticides.

For more information on “green burials” you can visit the Green Burial Council website. If you need to incorporate “green” provisions into your will or trust, call or e mail us at Pinkerton, Doppelt & Associates, LLP. Our initial in-house consultation is complementary.

New facilities are springing up all over the county for seniors in such areas as Escondido, Encinitas, San Marcos, and Vista. Some facilities have a resort type atmosphere and some even specialize in dementia and Alzheimer care. You can obtain a directory of senior facilities for assisted living, independent, and convalescent care from Alternatives for Seniors.

Moving a loved one to an assisted living, nursing home or convalescent home is not an easy decision. Particularly troublesome is how to pay for such care when one spouse needs to be cared for in a facility and the other wants to remain at home. Such specialized care can be expensive and impossible for many people to pay for out of pocket. It is estimated that long term care can cost $40,000 - $60,000 per year in some areas. Medicare typically will not pay for long term care. Some people have policies of long term health care which may partially cover such costs but if the insurance was not purchased when the individual was healthy, it is not going to be possible to obtain insurance once it seems evident that long term care will be necessary.

Medi-Cal is the California Medicaid system for people 65 or older with limited income and financial resources. Medi-Cal may pay for long term care however its rules and regulations are constantly changing and often confusing for the average person. At Pinkerton, Doppelt, & Associates we can help you with Medi-Cal planning, which is the process of qualifying for benefits while still protecting assets that have taken you a lifetime to accumulate. Call or e mail us to set up a complimentary consultation.

At our web site, you can read about the various ways to accomplish charitable giving. You can use a bequest in your will or trust or one of the various types of charitable trusts such as a charitable remainder trust or a charitable lead trust. At Pinkerton, Doppelt, & Associates, LLP we can incorporate your charitable wishes into a will or a revocable living trust. If you are considering leaving part of your estate to charity, you may wonder how do you choose one and how do you know whether that charity will use your gift wisely?

There is a way to find out such things as how efficient a charity is, how much of the donated dollars goes to administrative purposes, and how much to the actual programs. Charity Navigator rates charities using a standard of “no stars” to “4 stars” to rate charities in the areas of organizational efficiency and organizational capacity. The site also has useful information about what questions to ask before choosing a charity such as what are the charity’s goals, is it meeting those goals with its programs, is the charity well-managed, and is it a confirmed 501(c)charity (this means the charity has filed with the IRS as a tax-exempt non-profit organization).

4 Star charities in San Diego include the San Diego Zoological Society, San Diego Symphony, Autism Research Institute, Father Joe’s Village, Rady Children’s Hospital Foundation, San Diego Humane Society, and the Jewish Community Foundation of San Diego. There are many other San Diego and International charities that earn the 4 star reputation. If you need more information on how to implement charitable giving in your estate plan, contact us at Pinkerton & Doppelt, & Associates LLP. You may call us or e mail us for a complimentary in-house consultation.

If you die in San Diego without a will or a trust, you are deemed to have died “intestate”. To die “intestate” means to die without a “testament” (a will) or a trust and your estate will have to go through the probate process where the Probate Court will determine where your estate will go. This can result in unintended results for some people and not what they would have wanted.

As an example, most people believe that if they are married and they die without a will or a trust, all their property will go to their surviving spouse. That is not the case in California. If you are married with children, your community property(essentially property acquired during the marriage) will go to your spouse, but only one-half of the separate property (property acquired before marriage or inherited during the marriage) will go to your spouse if there is one child of the marriage. If you have 2 or more children, your spouse will only receive one-third of the separate property. This can be an unintended result if the estate is small and the surviving spouse needs all the assets in the estate to live on. Furthermore, California inheritance laws only recognize relatives of the intestate decedent, so the Probate Court can never distribute any of the estate to charities or non relatives.

Here are 10 example of things you cannot do if you die intestate:

1. Leave any part of your estate to a friend.
2. Provide for a disabled child or other disabled beneficiary so as not to impact their public assistance.
3. Designate a guardian for your minor children.
4. Prevent a minor beneficiary from receiving all of his or her inheritance at age 18.
5. Leave any gifts to charity.
6. Disinherit someone who is your heir.
7. Designate who will receive your personal property such as jewelry, artwork, coins, etc.
8. Provide a life estate so that someone can live in your home after your death.
9. Leave any part of your estate to a non-adopted step-child or foster child.
10. Designate the ages and the terms under which your children or grandchildren will receive their inheritance.

To avoid unintended results upon your death and provide for your loved ones in any of the ways listed above, it is important to have a will or a trust. A will allows you to accomplish these objectives but a will has to go through the probate process which can be costly and time consuming. A living trust is a better way to specify who you want to inherit your estate without the time and expense of probate. The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can assist you with implementing your wishes in the appropriate estate planning documents. Call us or e mail us for a complimentary in-house consultation.

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 Pinkerton, Doppelt, & Associates, LLP 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.

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 Pinkerton, Doppelt, & Associates, LLP and we will be pleased to offer you a complimentary consultation.

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 Pinkerton, Doppelt, & Associates LLP, 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.

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 Pinkerton, Doppelt, & Associates LLP for a free in-house consultation. You may call or e mail us with this or any other estate planning issue.

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 Pinkerton, Doppelt, & Associates, LLP we can assist with this or any other estate planning issue and offer a complimentary consultation..

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 Pinkerton, Doppelt, & Associates, LLP 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.

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 Pinkerton, Doppelt, & Associates, LLP 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.

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 Pinkerton, Doppelt, & Associates, LLP, 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.

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 Pinkerton, Doppelt, & Associates, LLP 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.

Estates are comprised of many different assets including homes, bank accounts [Bank of America, Union Bank and others], life insurance [Farmers, State Farm and others], and personal property such as jewelry, artwork, cars, and boats. Sometimes what causes the most squabbles among family members after a death is not the real property or cash but such things as jewelry, collectibles, or other items of strictly sentimental value such as grandma’s ring or grandpa’s gun.

Unless you have left specific instructions as to your personal property in your will or trust, usually it will be divided equally among your beneficiaries. But what is equally? How do you value a family heirloom? As an example, Rosa Parks (who you may remember started the civil rights movement in 1955 when she refused to surrender her seat on a bus to a white rider) had in her estate china that was used when she dined with then President Clinton. How does one determine the value of that particular piece of Wedgwood china? What about Grandma's ring? Something that may be priceless to a beneficiary because of its sentimental value may be worthless in terms of its appraised value. What if two or more beneficiaries want the same item and won’t budge?

If you have specific items of personal property that you want to give to particular people upon your death, you can make specific bequests in your will or trust. Usually however, people have too many items of personal property to list them all in their will or trust. Or they may acquire other personal property after they execute their will or trust or want to change their mind at some point about certain gifts.

To minimize any potential family squabbles, consider making specific bequests of valuable property in your will or trust. You also can include in your estate planning documents a Personal Property Memorandum which lists the intended recipients of your various items of personal property and should be a part of any trust package. At Pinkerton, Doppelt, & Associates, LLP, our estate planning attorneys can assist you with issues relating to disposition of personal property upon your death or with any other estate planning issue. Call or e mail us for a complimentary consultation.

If your child is now 18, there is valuable information for you and your now “adult” child available for free. There is a publication entitled “When You Become 18: A Survival guide for Teenagers" published by The State Bar of California. This pamphlet can be ordered in print form or downloaded from the bar website and answers such questions as what happens if my 18 year old commits a crime? As parents, are we responsible if our 18 year old injures someone with the family car?

One document every adult child should have is an Advance Health Care Directive to appoint someone to make health care decisions in the event of an incapacity. Once a child turns 18, the parents can't make medical decisions for their child. If the parents are divorced or separated and disagree on medical treatment, how is it resolved?

Similar to the Terry Schiavo case, there recently was reported the story of a 25 year old single woman who was brain damaged as a result of a dirt bike accident. She had no living will or power of attorney for heath care. Her divorced parents are arguing over a DNR order (do not resusitate order) signed by her mother and whether the mother or the father should be appointed her temporary guardian to make those end of live decisions.

An Advance Health Care Directive is a document that would have avoided this conflict by naming an agent to make health care decisions and setting forth the young woman's wishes about life support and end of life issues. At Pinkerton, Doppelt, & Associates, LLP we can help you with an Advance Health Care Directive or any other estate planning issue. Please call or email with any questions in this area or to set up a free in-house consultation.

In San Diego, the law changed on June 16, 2008 in regards to marriage ceremony and the issuing of State of California marriage licenses to same sex couples. The law which applied to opposite sex couples is unchanged. In San Diego, both same sex and opposite sex couples will go to the San Diego Superior Court for their marriage.

A recent California Supreme Court Case has taken effect and issues a Writ of Mandamus for all California State officials to perform marriages in accordance with the new ruling which does not define marriage as between a "man and woman".

As such, our law firm of Pinkerton, Doppelt & Associates, LLP is offering the same estate planning services for same sex spouses as for opposite sex spouses. No attorney can guarantee that the state of the law will remain the same. In fact, already there is the proposal for an amendment to the California State Constitution to make same sex marriages unconstitutional.

For decades, opposite sex spouses have enjoyed the benefits of a revocable living trust. Our office would be pleased to offer opposite sex spouses and same sex spouses the same estate planning services in conformity with the new In Re Marriage cases. Please feel free to call or e mail us.

In San Diego, we have many senior citizens. One article explains that talking frequently improves memory. An estate plan includes provisions for a conservatorship if necessary and our firm's hope is that you never need this and that by good health [both mental and physical] a conservatorship will never be necessary. However, if it ever is, please e mail our firm.

An article at SeniorJournal reports a study done at the University of Michigan Institute for Social Research. One of the researchers was a psychologist at University of California in San Diego. This study tested people as old as 96 and found that a ten minute conversation was just as effective as crossword puzzles or other “solo” intellectual activities for preventing loss of memory. So instead of sitting home alone doing puzzles to keep your brain sharp, invite someone over for a conversation.

As we grow older, we face not only issues of memory loss but also issues relating to estate planning, long term health care, planning for incapacity and other issues in the area of elder law.

If you are a senior with concerns over aging, contact us at the law firm of Pinkerton, Doppelt, & Associates, LLP for a free and confidential consultation. We can help you with documents to appoint someone to take care of your finances if you become unable to do that for yourself or a health care directive to appoint someone to make health care decisions for you in the event you are unable to do for yourself. If you don’t already have a living trust, the creation of one can be an incredible gift to your loved ones who will have to settle your affairs when you are gone.

In San Diego, many residents will pass away. When they do, their husbands, wives, sons, daughters, grandchildren and other relatives will receive their property either through the probate process or through trust administration or other legal procedures for distribution of assets post death of the trustor. In San Diego, there are two court houses which hear probate cases. One court house is in San Diego and the other court house is in Vista.

In a recent article in the Sacramento Bee, the issue of the importance of naming beneficiaries is discussed as part of the estate plan. The article discusses the distribution to contingent beneficiaries of a life insurance policy rather than the living trust as the beneficiaries.

Our law firm of Pinkerton, Doppelt & Associates, LLP would be pleased to give you advice on the advantages and disadvantages of all estate planning strategies. This is complimentary and confidential. Please feel free to e mail or call our firm.

In San Diego, California, we are governed by the laws of the United States and these are interpreted at the highest level by the California Supreme Court and the United States Supreme Court. In San Diego, for the State Courts, the law is interpreted by the