San Diego Estate Planning Lawyer Blog

Planning one’s long-term affairs usually spurs thoughts about designating who will get what in an
inheritance and explaining end of life wishes. But, there is much more to consider. For example,
planning for residents with young children must include difficult decisions about the long-term care of
their kids in the event of death or disability.

This issue made national headlines in recent weeks following the untimely death of former musician
Adam Yauch. Yauch is best known as one of the founding members of the groundbreaking rap group,
The Beastie Boys. Sadly, Yauch died in early May after a bout with cancer at the age of 47.

The singer created an estate plan well ahead of time, which included both a trust and a will. The terms of
the trust are private, though the singer’s net worth was estimated to be about $6.4 million. However, last
week the singer’s will was made public after being filed in court. Many observers were naturally curious
about the provisions the singer included in the document. One of the issues discussed in the document is
common to all parents--regardless of their net worth and celebrity status--naming a guardian for a child in
the event of death or disability.

Interestingly, the terms of the will suggests that Yauch and his wife disagreed about who would take care
of their daughter if something happened to both of them. Of course, in most situations a couple agrees on
an alternate caregiver, but that is not always the case. It is not necessarily uncommon for disagreements
to spring up in the planning process about who is best-suited to raise the children. Working out the
disagreements is a complex process that often involves novel compromises.

For example, Yauch’s will includes the seemingly bizarre provision that guardians for the children change
depending on whether he died in an even or odd numbered year. If he died in an even-numbered year,
then his own parents would be named guardians, with his wife’s parents as back-up. If he died in an odd
numbered year then the reverse occurred, with his wife’s parents named as guardians.

While these sorts of agreements are somewhat unique, the process of designating guardians for children in
a will is absolutely critical for all families. The need is particularly important for those families involving
step-children or situations where both parents are not biologically related to the child.

If no plans are spelled out in a will, then the decision will be left to the court to name a guardian. While
the court may end up awarding custody to a step-parent or other intended caregiver, the process is always
uncertain unless the appropriate legal steps have been taken ahead of time. Ensuring the best care for
one’s children is one of the most important steps a parent can take, and it is vital not to leave the decision
to another.

If you have children, it is essential to have planning documents in place to ensure you name your child’s
guardian in the event of death or disability instead of leaving the choice to the court. In our area, touch
base with a San Diego estate planning attorney to begin the process.

The San Diego Union Tribune, in April of 2011, have an article discussing retirement, estate planning and guardianship. In the article, which deals with financial planning as well as other issues, one of the recommendations is for an estate plan and guardianship of their children. An estate plan can include a revocable living trust which also has many other benefits such as a health care directive and guardianship provisions for any minor children.

A revocable living trust is an estate plan which can be changed or modified as circumstances require. A revocable living trust is one of the only areas in the law where you can make a contract with yourself and it is legally enforceable. Provisions in the revocable living trust can include what happens with your minor children upon your death and many other issues such as property division. The financial security of your family may well depend on your estate plan which can save thousands of dollars in probate fees.

Continue reading "San Diego Union: Estate Planning and Guardianship" »

Guardianship of the person means that the guardian of the minor arranges for the protection and care of the minor. This includes housing, clothing, food, shelter, education and all other needs. The guardian of the person also is in charge of all the personal needs of the minor, their education and their health care and medical needs. Depending on insurance coverage, a guardian may be able to obtain coverage of a minor through their medical insurance.

The San Diego Superior Court's timeline for guardianship of the person is approximate only and used for reference purposes. The petition is deemed to be filed on Day 1. A temporary guardianship may be requested but only under limited circumstances. On Days 1-5, the investigation is scheduled by either the San Diego Health and Human Services Agency of the San Diego Family Court Services. On Days 1-15, the relatives of the minor must be served with notice. On day 20, check the probate examiner's notes. On days 20-25, clear any defects which are in the pleadings. On Day 30, attend the hearing. On Days 30-35, file the order and ask for any letters needed.

Continue reading "Guardianship of the Person: San Diego Superior Court Timeline: July 2011" »

In San Diego, the San Diego Superior Court hears cases invoving guardianship. These cases are heard in the Probate Division. Guardianships can be both of the estate and/or person and gives legal custody of a minor to someone who is not their parent. If a child is in immediate danger, the San Diego Superior Court advises to immediately call 911.

Guardianship can be of the person or of the estate. A guardianship of the person means that you have control and are in charge of the child's personal needs, health care and education as well as arranging for the child's protection and care. A guardianship of the estate means that you must file accountings with the Court as scheduled, keep an accurate list of the minor's estate, protect the minor's property and income and manage the minor's finances in a prudent manner. This can happen, for example, when a parent dies and leaves a child their life insurance or other assets and the other parent is deceased.

A guardianship can be either temporary or permanent. A guardianship of the person will require an investigation by either the San Diego Family Court Services or the San Diego Health and Human Services Agency.

Continue reading "Guardianship in San Diego Superior Court: July 2011" »

During the time you are the appointed guardian of a minor child, you are responsible for providing
for all the personal needs of that minor such as food, shelter, education, and health needs.
Your responsibilities remain in effect until the child reaches the age of 18 or the guardianship is terminated by the Court.

You must file a Confidential Guardianship Status Report each year you are acting as guardian. The status report asks such questions as whether you have any health problems that would interfere with you continuing as a guardian, whether anyone in your household has been arrested, charged with, or convicted of a felony or a misdemeanor or any other offense involving alcohol, drugs, or sexual misconduct. You also have to report on the minor’s progress in school, his grades, activities, and any behavior problems. If the child has medical issues, those have to be disclosed and the names of all health care providers. You also should report the goals you have set for the child, whether there has been visitation by the child’s mother and father, and if the parents have financially contributed to the support of the minor.

You must notify the court of a move out of state. You must have the permission of the Court to move a child under guardianship in California to another state. A petition to fix residence out of state has to be filed with the Court who will consider whether it is in the best interests of the child to be moved out of California.

There also are restrictions on allowing the child to live with their parents or someone other than you. If you are appointed a guardian of a minor, you cannot allow the child to live somewhere else such as with their parents. You are legally responsible for the child and if the child is going to live with anyone other than you, you must seek the Court’s permission.

If you need help establishing a guardianship of a minor, the lawyers at Scott C. Soady, A Professional Corporation can guide you through the process. We also can continue to represent you after you have been appointed a guardian until your responsibilities are over either because the child has turned 18 or the guardianship has been terminated.

Petitioning the probate court to be appointed the conservator of someone’s person or estate may be necessary when an individual has become legally incapable of taking care of himself or unable to handle his finances, and has not created a durable power of attorney for finances. The majority of the time, conservatorships are not contested and granted upon a showing to the court that the proposed conservatee is incapacitated and unable to manage their personal or financial affairs. Sometimes, however, conservatorships are contested.

Family members may disagree as to who should be the conservator. Sometimes the proposed conservatee has a lawyer and wants to contest the granting of the conservatorship. Other times the contest arises simply because of miscommunication among family members who may not understand what it means for an individual to be conserved.

Contested guardianships are similar to conservatorships in the sense that the majority of the time they are not contested. Like conservatorships, family members can fight about who would be the best guardian for minors who have lost their parents or minors whose parents cannot take care of them. If there is no agreement, then a trial may become necessary before a probate judge.

Both contested conservatorships and contested guardianships can be emotional and sometimes embarrassing when they play out in a courtroom. The courtroom can be a battleground for the “he said- she said” and avenging of perceived wrongs, whether large, small, real, or imagined. Often there is not a “winner.” The judge will determine who should be the conservator or guardian but no one comes out a “winner” when the family has to go through such turmoil.

Both of these types of cases often can be resolved with mediation. Mediation provides an opportunity for all parties to express their opinions, feelings, etc. and a mediator can often guide the parties to remember that the real issue is the welfare of the conservatee or the minor. Mediation is not done in a courtroom but in a neutral setting, usually the mediator’s office. It is voluntary and confidential with the goal being for all parties to express themselves and resolve the conflict between them.

The estate planning lawyers at Scott C. Soady, A Professional Corporation can assist you with your contested conservatorship or guardianship matter, whether it be through mediation or a trial in the probate court. Call us if you would like to schedule a complimentary consultation.

Whether you are married or divorced, one of the most important decisions you have to make in estate planning is the choice of a guardian for your minor children. Some clients who are divorced ask whether they still need to nominate a guardian if they are divorced. Won't the other parent automatically get custody?

It is true that absent a compelling reason not to, a judge will grant custody of minor children to their other parent, however there are some situations where your nomination would be helpful to the court. Judges consider a number of factors in determining who should be a guardian such as:
1. The child's preference
2. Which individual seeking custody will best meet the needs of the child.
3. Which proposed guardian will provide the greatest stability.
4. The moral character of the proposed guardian.
5. The relationship between the child and the proposed guardian.
6. The choice of the child's mother or father.

Suppose you and your ex both pass away while the children are still minors? If you have nominated someone in your will or trust and your ex has not, your nomination will be the only document showing the courrt what your wishes were for your children.

Suppose you pass away and your ex is alive but is not able to care for the children, for example he or she is incapacitated, in prison, or unfit to raise them? It is difficult to prove that a parent is unfit but it can happen. Again if you have nominated a guardian, the court will give weight to that choice. So go ahead a name a person to care for your children, even if you are divorced.

As you prepare your estate plan, many of the decisions you have to make relate to your children. You may not have thought about how you would want your estate distributed to your minor children if something should happen to you. Would it go to your children equally? Should it be distributed outright or in trust? Should your estate be held in trust with distributions for health, education, and support and then distributed at various age intervals? Who would be an appropriate choice to be the trustee that manages your children’s assets

Another consideration is the choice of who will be the guardian for your minor children. Here are some questions to ask yourself as you think about who to nominate as the guardian of the person, ie. the individual or couple who will physically take care of your children: feed them, clothe them, educate them, etc.

1. Is the person you’ve chosen young enough to take on the responsibility? Often young couples will want to name the maternal or paternal grandparents. Raising children is a tough job and as much as you may want to name your parents, they may not be physically capable of raising your children to adulthood or they may not survive you. If you do choose individuals who are older than you, always name back up guardians.

2. If you’ve named a couple to take care of your children, what should happen if the couple divorce?

3. Is the proposed guardian physically well, emotionally stable, and financially secure? Does he or she have a healthy lifestyle and no addictions? Do they have a job that could take them out of the state or necessitate a deployment out of the country?

4. Does the individual have parenting skills similar to your own and the traits necessary to raise your children? Patience and a sense of humor come to mind. Are your religious beliefs an important consideration?

As with all the issues involved in creating an estate plan, we can help you through the process of making these and other important decisions. Call us or email us if we can help.

Guardianship in California is the court process by which a person other than a parent is given custody of a minor child or given the authority to manage a child's estate. The petition for guardianship can be filed by a relative or "any other person on behalf of the minor." Usually we see family members petitioning to become the guardians of their grandchildren, nieces or nephews or maybe siblings.

In the recent case of "Octomom" Nadya Suleman who gave birth to octoplets in January 2009, it was not a relative but a "stranger" who petitioned the court for a guardian of the estate to be appointed for the children, claiming that an independent person should oversee the children's finances if they were going to earn money from reality TV shows and sellling photos.

The Court in Orange County first ruled in favor of the "stranger" who was a self-professed child advocate, who filed the guardianship petition through his attorney Gloria Allred. The Court appointed a guardian ad litem to investigate the matter and report back to the Court. Recently though a Court of Appeals Court has ruled that although the California Probate Code does legally allow a "stranger" to file a petition for guardianship, he or she must show evidence of actual financial mismanagement by the parent. The Court dismissed the petition because there was no evidence that Octomom was mismanaging the childrens' money.

At Scott C. Soady, A Professional Corporation we handle guardianships of the person and of the estate. Sometimes family members or friends need to be appointed the guardian of a minor child whose parents for some reason, are permanently or temporarily unable to care for their child. Call us if we can assist you.

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 Law Office of Scott C. Soady, A Professional Corporation 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 Law Office of Scott C. Soady, A Professional Corporation 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 Law Office of Scott C. Soady, A Professional Corporation 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 Law Office of Scott C. Soady, A Professional Corporation 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 Law Office of Scott C. Soady, A Professional Corporation 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 Law Office of Scott C. Soady, A Professional Corporation, 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.

Continue reading "San Diego Military Deployment: Estate Planning Issues" »