San Diego Estate Planning Lawyer Blog

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.

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.

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.

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.

Unfortunately, it occasionally happens that both parents of a minor child die in a common event or accident. If both parents die without an estate plan, a probate judge will have to appoint a guardian. A guardian is responsible for taking care of their “ward” until the child turns 18. This includes such things as housing, food, medical bills, clothing, education, and other incidental expenses. Having the Probate Court choose a guardian for your children may not always result in a guardian that you would have selected.

If the parents have a will or trust designating a legal guardian for their children, the children will be taken care of. A will or a trust allows you to have a say in who takes care of your child upon your death. You are in the best position to know who that individual is. Who is best able to provide a stable and nurturing home for your child - your brother, sister, grandparent, a close friend?

Factors you should consider are:
1. The age of the proposed guardian. Is the proposed guardian young enough to be able to care for the children until they reach adulthood?
2. Ages of your children. Any special needs?
3. Family structure of the proposed guardian. Is the guardian married, single, already have 6 children to raise?
4. Health issues, financial situation, religious views, living arrangements of the proposed guardian. For example would the guardian be able to raise your children in his or her existing home or would you want to provide that they could live in the family home? Does the proposed guardian have the same religious and other philosophical views as you? Does the guardian have any health issues that would have an impact on his or her ability to take care of your children?
5. Willingness to serve. Consult with the proposed guardian to be sure they are willing and comfortable with taking on the responsibility of guardian.

Nominating a guardian for your children is very important but even more so if you are selecting a non family member as a guardian. If the guardian has to be appointed by the Court, family members are usually given priority over non family members. At Pinkerton, Doppelt, & Associates, LLP we can assist you with the appropriate estate planning documents to nominate guardians for your minor children should something happen to you. This is best accomplished with a revocable living trust which will include nomination of guardians for your children as well as pour-over wills, durable powers of attorney for finances, health care directives, and other accompanying documents. Call us or e mail us for a complimentary consultation to discuss guardians and any other estate planning issues.

In San Diego, there are many instances of when an emergency guardianship would be necessary. A hearing would have to be set up in advance with the Clerk's Office as [many times] there is no existing case number to file a petition for emergency guardianship under.
In San Diego, there is a court house on 4th Avenue in San Diego and another court house on Melrose Avenue in Vista which hear guardianship cases.

A recent article highlights the types of emergencies which can occur. In that case, a San Diego man located a six year old girl and her baby sister in Baja, California. Many San Diego residents have visited El Rosario in Baja and this is a popular tourist destination for Southern Californians. The girls were with their fugitive parents. The girl's relatives will petition the Court in Santa Cruz County [where the proper venue is] for an emergency {ex parte} guardianship.

Emergency situations can arise in regards to minors. Please feel free to e mail our firm of Pinkerton, Doppelt & Associates, LLP if you have an emergency [or non emergency] guardianship questions.

In San Diego, California many residents are in the military. As we know, deployments are common. In light of the recent call to active duty received by thousands of United States military reservists, employers and employees alike need to know their obligations to each other when employees serve in the uniformed services. The reemployment rights of military members were revised by Congress in 1994. The main thrust of the legislation is to guarantee the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other protections.

Estate planning issues always arise and state law is very important in San Diego, California and there is information about necessary powers of attorney. The federal law applies to all Armed Forces members, including the Reserves, National Guards, the commissioned corps of the Public Health Service, and any others designated by the President during a war or an emergency. Employees of both private and public employers are protected when they have embarked on and have been honorably discharged from military service consisting of active duty, inactive duty training, full-time National Guard duty, or absences for fitness examinations. Unlike some other federal employment statutes, the law on reemployment rights of individuals in the Armed Services has no minimum number of employees for there to be coverage.

An employer is prohibited from using a person's military service or application for such service as a motivating factor in any adverse employment action against that person. Nor can an employer retaliate against an employee who participates in the reporting, investigation, or filing of claims asserting that the employer violated the federal statute.

To receive the benefit of the statutory rights and protections, an employee generally must give the employer advance oral or written notice of military service. Exceptions to this requirement are recognized when giving such notice would be impossible, unreasonable, or contrary to military necessity. One important consideration is the care and protection of minor children left behind and sometimes a guardianship is necessary.

Employees leaving their jobs for military service lasting less than 31 days are entitled to continued health insurance coverage at the same cost, if any, that active employees would pay. An advanced health care directive is really essential for any member of the armed services on deployment in the event they are incapaciated and sent back to the United States under the care of their family. For service lasting more than 31 days, employees may elect to pay for continuation of their health coverage for up to 18 months, or until their reemployment rights expire, whichever comes first. Upon returning to work after military service, an employee is entitled to immediate health insurance coverage, even if returning employees usually face a waiting period.

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