San Diego Estate Planning Lawyer Blog

In California probate proceedings are governed by the Probate Code which sets forth certain time limits. Once a petition for probate is filed, you will receive a date for the first hearing in which an administrator or executor is appointed. The hearing is often 2-3 months after the petition has been filed. Once the representative has been appointed, notice has to be given to creditors of the decedent. Creditors have four months after publication of the notice of probate or 60 days after receiving actual notice, whichever is later to file a claim. Then the process begins of collecting and valuing all of the decedent's asset, paying the debts, taxes, possibly liquidating some assets, and finally distributed the assets to the heirs or beneficiaries.

The normal time for probate in San Diego county is between 9 months and 18 months. There are a number of factors that may make the probate process take longer. Some of these are:

1. Many beneficiaries
2. Beneficiaries that cannot be found.
3. A will contest brought to dispute the validity of the will. If a contest is filed, it will have to be decided before the estate can be distributed. Sometimes this can take years if there are depositions that have to be taken and either mediation or a trial.
4. Disagreements among the beneficiaries such as who should be the administrator, whether the accounting is accurate, whether there are beneficiaries that should be disqualified, or having to set up a guardianship of the estate for minors. Each time a petition or motion is brought in the probate matter to resolve a disagreement, it lengthens the time for closing the estate.
5. A taxable estate. If the estate has to pay federal estate tax, this can delay closing the estate. This is not a problem for decedents who passed away in 2010, however in 2011, if the Legislature does not act, the federal estate tax threshold will revert to $1 million making many more estates subject to estate taxes.
6. A complicated estate with unusual assets. Typical estates consist of real property, bank accounts, investment accounts, etc. If one of the assets is a business, however, it can take time to appraise such an asset. The same is true of oil or mineral rights or other unusual assets. If there are many assets, it can also take additional time to appraise all the assets and liquidate them if they need to be.

The estate planning attorneys at Roy M. Doppelt & Associates handle many probate matters and can make the whole process easier for an executor or administrator. We offer free consultations so if you have a probate matter, give us a call.

A previous post mentioned that this is the year for billionaires to die without their estate being responsible for any estate taxes. One of this country's billionaires is Donald Bren of the Irvine Company in California. Estate taxes were far from his mind when this week in Orange county, a jury decided the interesting case of whether he owed his biological children by a mistress approximately $130 million in back child support. The causes of action brought by the mistress and the two children, now 22 and 18, were based on fraud and breach of contract on the premise that Bren had not given enough emotional and financial support to the children. At one point Bren was giving each child $18,000 a month. The children claimed that he was required to pay them support according to his "circumstances and station in life," arguing that he should be required to pay them $400,000 per month applied retroactively.

Bren, now 78, has an estimated net worth of $12 billion dollars and is married with a 7 year old child. The jury decided in favor of Bren and ruled that the children were not entitled to additional support. So now Bren's billions are intact and he can plan for how best to leave his billions without paying billions in estate taxes. Next year unless the Legislature acts before the end of the year, the federal estate tax exemption is set to return to a level of $1 million. Millions of Californians will then have estate tax issues just like Donald Bren. There are ways to minimize estate taxes including irrevocable life insurance trusts, gifting, and other advanced estate planning techniques.

If you have questions or want to consult with an experienced estate planning attorney about your estate and how to minimize estate taxes, call us at Roy M. Doppelt & Associates for a free consultation. Also go to our family law website where you can read articles about child support and other family law issues. Consultation for family law are also available.

When someone dies, either with a will or a trust, the assets owned by the decedent have to be valued to determine the fair market value. The date used for valuation of assets is usually the date of death. Sometimes the document, whether a will or a trust, will provide that another date can be used such as 6 months from the date of death. The important thing is that the date is consistent for all of the assets.

Assets that have to be valued can be real property, personal property, investments, bank accounts, IRAs, pension and retirement plans, stocks, bonds, mineral rights, and business interests. Some of these may not be trust assets but still have to be valued if there is going to be an issue with estate taxes. For example, assets held in joint tenancy may not be subject to probate or trust administration, but they still have to be valued for estate tax purposes.

Property such as real property is valued by obtaining a written appraisal by a licensed experienced professional appraiser. The appraisal should include descriptions and photos of the subject property, comparable sales, and a determination of value. Sometimes real property can also include having to appraise personal property as well such as farm equipment, livestock, crops, etc. or in the case of a professional building, the value of equipment and trade fixtures.

The value of personal property also is determined by an appraisal. For household furnishings, the IRS requires an itemized list of the furniture values. Items of jewelry or art should also be appraised by someone experienced in jewelry appraisals such as a gemologist or an appraiser that works in the art field. Other personal property that may need to be appraised may be automobiles, planes, or collections such as coins or stamps.

A business such as a family run business, a professional corporation, or a limited partnership also has to be appraised. Specialized appraisers may have to be retained to value the fair market value of the business and the decedent's interest in the business.

For stocks and bonds that have to be valued, their value on the date of death can be determined by the average selling price of the stock or bond on the date of death. Mutual funds can also be valued using the bid value or public redemption price of the fund on the date of death.

Bank accounts can be valued as of the date of death by bank statements.

Valuing assets can be a tricky and time consuming task requiring experienced consultants and an experienced estate planning attorney. We can assist with this task at Roy M. Doppelt & Associates.
Call us if we can help.

One of the documents of our revocable living trust package is a document called a "pour over" will. Many clients ask why they need a will when they are doing a trust. Wasn’t one of the reasons to create a trust to avoid the probate process that is necessary with a will?

A “pour over” will is a specific type of will that accompanies a living trust. A “pour over” will is like a safety net. If you transfer all of your assets into your revocable living trust, then the pour over will not be necessary. But what if you accidentally or intentionally leave an asset out of your trust? In some situations a decedent may forget to title an asset in the name of his trust. A common example is when you refinance your home. Lenders ask you to take your property out of the name of the trust but don’t always put it back into the trust for you after the refinance. If you did not have a “pour over” will, the property would have to be distributed according to the laws of intestacy, which may not be the same as the beneficiaries of your trust.

With a “pour over” will, any assets owned at death and not otherwise titled will be “poured over” into your existing trust and be distributed according to the trust provisions after the asset is probated. Only the one asset not titled in the name of the trust, or otherwise transferred because of a beneficiary designation, will have to go through probate. In the example of a refinance, suppose you took your residence out of your trust to refinance and forgot to put it back in. Your trust provides that your residence is to go to a specific charity. With no “pour over” will, the residence will go through probate and be distributed to your intestate heirs, probably your children if you have no spouse. With a “pour over” will, the residence will still go through probate but will be “poured over” into your trust and be distributed to the charity you named.

If you have questions about a living trust, the probate process, or any other estate planning questions, call us or email the experienced estate planning attorneys at Roy M. Doppelt & Associates.

Remember when hotel magnate Leona Helmsley left $12 million to her dog Trouble? It's happened again! The late Miami heiress Gail Posner who recently died in Miami left $3 million to her dog Conchita and 2 other dogs who will live in her 7 bedroom $8.3 million mansion cared for by housekeepers, bodyguards, and other staff members who themselves were left a total of $26 million. Mrs. Posner's son Bret received a mere $1 million. He has challenged the trust alleging undue influence and fraud on the part of the staff memers and the attorney who drafted the trust.

If you want to provide for your pet after your death, there are several ways you can do it with a lot less money. The most common way is to leave a designated amount to a friend or family member to care for your pet. This would be a non-enforceable bequest so you need to be sure that the person you choose will follow through. You could also leave a monetary gift to a charity that will keep your pet for a fixed fee. Apet trust is another way to provide for a pet and it is enforceable by the court. You leave a certain amount of money or percentage of your estate to fund a pet trust for your pet(s). The trust is enforceable by a person named in the trust or by a person appointed by the probate court, any other person interested in the welfare of animals, or a nonprofit charity who cares for animals. The pet's care is taken care of and after the pet dies, there are remainder beneficiaries who inherit the balance of your estate.

Often clients care as much about their pet as they do about the rest of their personal property. We can draft provisions for your pets in your own revocable living trust or we can create a "stand alone" trust for your pets. Contact us at Roy M. Doppelt & Associates for a complimentary consultation.

Recently Warren Buffett and Bill Gates decided to begin a philanthropic campaign called the Giving Pledge Campaign. Buffet and Gates have each pledged to give half of their wealth to charity and have contacted a number of other billionaires world wide to make a similar pledge.

It is reported that there are approximately 403 billionaires in the United States. At www.givingpledge.org you can see which billionaires have pledged. In San Diego, Irwin and Joan Jacobs have pledged. Other notable billionaries who have agreed to give the majority of their wealth to philanthropic causes or charitable organizations are George Lucas (moviemaker), T. Boone Pickens (energy mogul), Barron Hilton (Hilton Hotels), Ted Turner (TV), and Larry Ellison (founder of Oracle). It is unknown how many billionaires there are world wide but India has the second largest number after the U.S.

You may not be a billionaire who can pledge half your wealth to charity, but many people with normal size estates make charitable donations to their favorite charities. Individuals who not have children or grandchildren frequently leave sizeable donations to charity. If you have considerable wealth, even if not in the millions or billions, you could pledge to leave half of it to charity. There are a number of ways you can do this in your estate plan. You can provide for a certain dollar amount to go to charity. You can provide that a certain percentage of your estate goes to a charity or charities. You can also create a charitable remainder trust, a charitable lead trust or leave an IRA or other asset to charity. Read about these different ways to implement charitable giving on our website and contact us if you want to incorporate these ideas in your estate plan.

If someone dies without a will or a trust, they are said to have died intestate. According to the Probate Code sections on intestacy ( Sections 6400 et seq.), that person's estate will be distributed to the persons specified in the Code. For example, if you die without a will and have a spouse and children, your estate will be distributed to them. If you have no spouse or children, it will go to your parents. If your parents are deceased, then it will go to your brothers and sisters, and on down the line until a relative is found.

But what happens if no heirs can be found? If someone dies with no living relatives, their assets will go the State of California who will auction off the property. Personal property is usually auctioned in the county where the decedent died. An interesting article in the LA Times recently told about the auctions held there several times a year. They are held in the City of Industry in the L A area. Huge crates contain the personal property divided into various categories.

Some of the interesting articles that have gone to auction include a 200 year old German violin, autographed memorabelia from the drummer for the rock bank Buffalo Springfield, classic Batman comics, and artwork claimed to be by Picasso. Sometimes the property which goes to the State can be of significant value. LA county had to dispose of an approximately $3.5 million estate, including homes in Malibu and Palm Springs, and a Rolls Royce alledgedly belonging to a Persian princess.

For people who have no relatives, estate planning is critical so that their estate doesn't go the State. With a will or a trust, an estate can be left to a charity or to friends if you have no relatives. For a will or a trust or other estate planning needs, contact us at Roy M. Doppet & Associates.

Past blogs on our website have discussed California Probate Code section 21350. That section limits certain individuals from receiving assets under a will or a trust in some circumstances. Some of the suspect transfers are to the person who drafted the will or trust, a conservator of the transferor, or a care custodian of the transferor. A "care custodian" is defined as a person or agency which provides health or social services to an elder or a dependent adult. The section states that such individuals are presumed to have unduly influenced the transferor to provide for them in their will or trust. Once the disqualifying relationship is established, the transfer is presumptively invalid and it is then up to the objecting party to show by clear and convincing evidence that the transfer was not due to fraud, undue influence, duress, or menace,

Probate Code section 21351 sets forth certain exceptions to these rules. If the transferor and the care custodian are related by blood or marriage, there is an exception. If the document was reviewed by an independent attorney who counseled the transferor and determined that it was not the result of fraud, menace, duress, or undue influence, there is an exception.

In 2009 a California case Estate of Pryor held that a care custodian who later marries the transferor before his or her death, can invoke the spousal exception of Probate Code Section 21351. The case involved Richard Pryor, the comedian, who died in 2005. He and his wife Jennifer were married in the 80's and then subsequently divorced. After the divorce, the ex-wife became Pryor's care custodian in 1994. In 2001 they secretly remarried. Pryor in his will left substantial assets to his wife rather than his children. The children claimed that the remarriage was due to undue influence and fraud and sought to have the gifts declared invalid as a presumptively invalid transfer to a care custodian. The Court found in favor of the wife, stating that section 21351 created an exception for persons who are related by blood or marriage. The section doesn't mention anything about showing that the marriage was not procured by fraud or undue influence. Since the Legislature had not indicated that the marriage could not be the result of fraud or undue influence, the Court felt it could not take it upon itself to make such a finding.

At Roy M. Doppelt & Associates, we counsel clients who are thinking about leaving assets to a care custodian. We can draft a Certificate of Independent Review if we determine that the gift to a care custodian was not the product of fraud, undue influence, or duress. This can prevent litigation after your death about whether your care custodian should receive your gift.

Many couples who have opted not to get married may believe that estate planning or lack thereof is the same for them as for married couples. Unfortunately, it is not, which is why unmarried couples really need an estate plan.

Whether gay, lesbian, or heterosexual, unmarried couples do not have the same rights as married couples. If you die without a will or a trust, your assets will not be distributed to your partner, no matter how long the relationship. Your estate will go to your family. If you are unmarried and your partner is in an accident and needs someone to make health care decisions, you cannot make those for him or her. Similarly you have no right to access your partner’s medical records or information. If financial decisions need to be made during a period of incapacity, you don’t have the right to do that either without a power of attorney signed by your partner naming you as an agent to handle those type of matters. Also unlike married couples, unmarried couples do not have the benefit of the marital deduction so you could have tax issues by not being married.

With a living trust and all the companion documents such as an Advance Health Care Directive, Durable Power of Attorney for Finances, and a Nomination of Guardians for your minor children, you will be able to insure that your partner inherits your estate and if you have children, they will be taken care of if something should happen to both of you.

Other ways you can provide for disposition of assets upon your death is to name your partner the beneficiary of a life insurance policy. Employee benefits and IRA's can be tricky as some employers will not allow you to designate a partner. You may have to name your trust the beneficiary and make your partner the beneficiary of your trust. Unlike married beneficiaries, unmarried beneficiaries of IRAs do not qualify to roll over an IRA. You can also leave payable on death accounts such as bank accounts or investment accounts to your partner.

With appropriate estate planning, unmarried couples can protect each other and provide for any children they have together. The experienced estate planning attorneys at Roy M. Doppelt & Associates can help you determine how best to implement your wishes and goals for the future.

At Roy M. Doppelt & Associates, we assist families and individuals with a variety of legal needs. We do family law, civil law, and estate planning. In the estate planning area, we have many different types of estate planning clients.

Some clients come to us because a loved one has passed away and they need help with probate if the loved one had a will. If the loved one had a trust, then they have questions about how to administer a trust. If someone dies without a will or a trust, then there will be a probate also. We can walk you through the probate or trust administration process

Many clients consult with us about a revocable living trust. Maybe they are a young couple just starting out, having their first child and want to create a trust to provide for their minor children should something happen to them Others want to be sure that their children do not receive an inheritance outright at age 18 and want to plan for incremental distributions should both parents die. Other trust clients want a trust to avoid probate for their beneficiaries. Some want to include charitable giving in their estate plan. Estate planning is the process of creating a legal plan that will protect you, your family, and your assets while you are alive, incapacitated, or when you pass away.

Some young adults who are turning 18 want to execute advance health care directives and HIPAA authorizations so that their parents can make health care decisions if necessary and have access to medical information.

We also see clients that want to establish a guardianship for a minor or a conservatorship over an adult who is unable to take care of their personal needs or finances.

There are also some clients who want help with business succession planning. They might want to create a plan to leave their ongoing business to a family member or a partner or draft a buy and sell agreements.

Lastly we also handle probate and trust litigation when problems arise in any of the above situations.
To set up a complimentary consultation about your estate planning needs, contact us by phone or email.

A power of attorney is a legal document that allows you to choose a person you trust to take certain actions on your behalf if you become incapable of managing your financial affairs. It is an extremely important document to have because if you suddenly become incapacitated and you don't have such a document, the probate court may have to step in.

A “durable” power of attorney means that the power of attorney remains valid even if you become incapacitated and unable to make decisions for yourself. There are several types of powers of attorney.

A limited power of attorney for finances is one that authorizes your agent to act only for a specific transaction. Suppose you are going out of the country and need someone to act for you in closing an escrow. You can execute a limited power of attorney which authorizes your agent only to act with respect to the escrow.

A general durable power of attorney is one that covers a variety of actions authorized for the agent to do: Powers such as making bank deposits, paying bills, buying or selling property, filing income taxes, making investments, operating a business, and collecting or applying for social security or Medi-Cal.

These general durable powers of attorney come in two types: springing and those that are effective immediately. A springing power of attorney typically becomes effective upon one or two doctors certifying that you lack capacity to handle your financial affairs. A power of attorney which is effective immediately upon execution means that the agent you name can act without further authorization. Often this type of power of attorney is used by spouses so that each can act immediately if their spouse becomes incapacitated.

A durable power of attorney ends at your death. At that point, the trustee of your trust takes over or your executor if you have made a will. At Roy M. Doppelt & Associates, a durable power of attorney is included in your revocable living trust package so that you have the necessary documents for incapacity as well as for distribution of your estate after your death. Call us if you have any questions about powers of attorney or any other estate planning issues.

We are always learning from celebrities what not to do in estate planning. Business succession planning is so important for individuals who own a business and want that business to continue to operate after their death. Business succession planning can involve important issues such as who will have control of your business when you retire or die? Who will have ownership? It can also involve tax planning to minimize the taxes. Planning in advance can make the transition much easier.

Dale Earnhardt Sr,, famous race car driver who died in a crash at the 2001 Daytona is an example of how poor planning can have disastrous results.

Dale Earnhardt Sr. started Dale Earnhardt Inc., the company that ran his racing team. When Dale Sr. died, he left his business DEI to this third wife Theresa, not the mother of his children. Theresa became the owner of the racing team in which Dale Jr. was the principal driver. An interesting issue developed when Dale Jr. found himself not only not in control of the company but also not even having the rights to his own name. Apparently his father Dale Sr. had filed a trademark for his son's name and Dale Jr. signed a consent to it. When Dale Sr, died, the rights to Dale Jr.'s name went to his estate and then to Theresa. Dale Jr. tried to negotiate with his step mother to gain some control of the company but nothing came of it and in 2007 Dale Jr. resigned to drive for another racing team.

It is hard to imagine that Dale Sr. would have wanted his son, who followed in his footsteps as a race car driver, to be shut out of DEI. Had Dale Sr. planned properly, a plan could have been created to give control of DEI to his son and still left plenty of resources for his wife.

Roy M. Doppelt & Associates can help with planning for the succession of your business as part of an overall estate plan. Read about some of the points to consider in our article on Business Succession Planning and contact us to schedule a free in-office consultation.