San Diego Estate Planning Lawyer Blog

A family allowance is a amount of money which the Probate Court can order the estate of a decedent to pay to persons who the decedent was obligated to support or who the decedent was in fact supporting at the time of his death. Priority goes to family members such as a surviving spouse or minor children but parents and brothers and sisters can also request an allowance if they were supported in whole or part by the decedent. The family allowance must be reasonable in amount and is in the discretion of the judge based on the circumstances. The allowance, once ordered, continues until there is a final distribution of the estate or by further court order.

An unusual situation has arisen in the case of Michael Jackson' estate. Joe Jackson, the father of Michael Jackson, is seeking a family allowance in excess of $15,000 per month, claiming that he was dependent on his son for support. Michael did not provide for his father in his will or trust. The father and son had been estranged for years and Michael had stated he did not want his father to receive any part of his estate. Michael apparently was not supporting his father in the sense of writing him checks.

Jackson filed a petition in the Los Angeles Probate Court claiming his only income is $1770 from social security and his expenses exceed $15,000 per month. The Court has already ordered family allowances for Michael's children and mother. An evidentiary hearing will be he held in May, 2010. It will be interesting to see if the LA court orders an allowance on the theory that Michael supported his mother and she apparently gave some of that money to the father. As with many issues surrounding the singer's death, stay tuned.

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.

In addition to handling probate, trust administration, and preparation of all types of trusts, we often get inquiries from heirs and beneficiaries with concerns about the way an executor, administrator, or trustee is administering an estate in San Diego. Sometimes beneficiaries cannot get an accounting of the trust assets. Sometimes they have issues with the distribution of assets. In some cases, they may have suspicions that the individual handling the estate is self-dealing or guilty of outright fraud.

The executor, administrator or trustee of an estate has a fiduciary duty to the beneficiaries. This means that they must act with the highest degree of honesty and integrity. They have certain duties under the law that they must fulfill. Among those duties are the duty to collect and protect the assets; duty not to commingle estate assets; and a duty to be impartial. They also are required to communicate with the beneficiaries, provide an accounting of the assets, and distribute the assets according to the testamentary instrument (will or trust) or if there is none, according to the Probate Code.

Pinkerton, Doppelt, Associates, LLP represents heirs and beneficiaries as well as executors, administrators, and trustees. If you can concerned about the way an estate is being handled, you have options and remedies. One remedy could be filing a petition in the Probate Court to have the Court address the issue, order an accounting, or remove an executor, trustee, or beneficiary. There are also civil remedies for fraud, breach of fiduciary duty, or constructive trust. If you are over 65 years if age, you may have a action for elder abuse.

Contact us for advice about your options if you are a beneficiary and have concerns about the way a will or trust is being administered or if you are an heir and believe you are entitled to an inheritance.

When you die without a will or a trust, you are said to have died “intestate.” The Court in the probate proceeding ,which will have to occur when someone dies"intestate,'" will determine who receives your estate based on California law. So if, for example, you are single with no children, your parents are your heirs and your estate will be divided between your mother and father.

But what about a situation where a father abandons his child at birth, has had no contact with his child, never paid child support, i.e. not really much of a father. Should that type of father inherit his son’s estate when the son dies? You are probably hoping the answer is “no”. Unfortunately the answer is that the father will inherit from the son, no matter what kind of a father he has been.

In a California case called Estate of Shellenbarger, decided by the Second District Court of Appeal in 2008, there were similar facts. The son died intestate (without a will or trust). Since the son was unmarried with no children, his parents are his heirs under California law. The administrator appointed by the Court tried to argue that the father should not receive any inheritance based on fairness, because he had left the mother prior to his son’s birth and never made any child support payments. The Court ruled that intestate succession is purely based on statute and a Court cannot disinherit an heir even on equitable grounds.

A similar result would occur if a father died intestate with no wife and 2 sons, one of which he had no contact with after the son left home at 17. The other son took his father into his own home and cared for him before his death. The two sons would inherit equally even though it may have been the case that the father would not have wanted his wayward son to inherit anything.

What this illustrates is that if someone dies without a will or a trust, the heirs are set by law. The statute which is set out in California Probate Code Section 6402 doesn’t take into consideration whether that heir had a relationship with the decedent or any other factors. A “bad” heir is still an “heir”.

If you think you might have a situation similar to the above examples, it is so important to get a will or a trust. Pinkerton, Doppelt, & Associates, LLP can help you with the process of
naming the specific beneficiaries who will share in your estate upon your death so that your assets will be left only to someone you would have wanted to receive them.

In trust administration and probate in San Diego County, appraisals of the decedent's real property are an important part of settling an estate. At Pinkerton, Doppelt, & Associates, LLP, one of the first tasks is to obtain an appraisal of real property as of the date of death. The appraisal, in addition to valuations of the rest of the decedent's estate, form the basis for determining the total value of the estate for purposes of distribution to beneficiaries.

Recently, a bipartisan amendment approved in October by the House Financial Services Committee proposes a new set of rules for obtaining appraisals. The old rules imposed nationwide by mortgage giants Fannie Mae and Freddie Mac, according to realtors and mortgage brokers, produced appraisals often below the agreed-upon price, causing delays and disputes and the necessity for multiple appraisals. The new rules are more likely to encourage independent appraisals, not influenced by loan officers and mortgage brokers. The new amendment has the endorsement of President Obama and the House of Representatives but may face an uphill battle in the Senate.

Appraisals are just one part of trust administration and probate. We use independent appraisers for real property and can help with appraisals of valuable personal property as well. There are numerous tasks that must be done by a successor trustee of a trust or an executor or administrator of a probate estate. Our estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can assist you with all aspects of trust administration or probate. Please call or email with questions or to set a complimentary consultation.

Last month our blog concentrated on Probate in San Diego. If you have been reading our blog, you know that fees for an executor or administrator are statutory in California. The fees are set by the Probate Code and are the fees for both the executor/administrator and the attorney for the estate. On a $500,000 estate, for example, the executor or administrator’s fee would be $13,000 and another $13,000 for the attorney. Therefore on a $500,000 estate, together the fees would be $26,000 plus there will be other costs and fees to probate the estate.

Just because you are entitled to an executor or administrator fee doesn’t mean you have to take your fee. There may be reasons not to accept a fee. As a beneficiary, your inheritance is tax free. Your executor fee is not; it is taxable income. So if you are the sole beneficiary of your parent’s will, it makes no sense to take a fee. Waiving it will increase your tax-free inheritance.

If you are one of many beneficiaries, waiving your fee will cause the other beneficiaries’ shares to be greater which you may want or maybe not. Sometimes in a family situation, executors choose to waive fees just to insure more harmony in the family.

Pinkerton, Doppelt, & Associates, LLP handles many probate matters and can advise you about taking or waiving executor/administrator fees as well as guiding you through the probate process. We are happy to answer any questions you have.

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.

Frequently Asked Questions about San Diego Probate

1. How long will my probate matter take? As a general rule, most probates in San Diego are finished in a year to 18 months. However there can be many issues that may cause the probate to last longer. Common examples are litigation issues that develop such as an objection to the will, unusual property that has to be appraised or liquidated, difficulty finding heirs or beneficiaries, and larger estates with tax issues.

2. If I am an administrator or an executor, will I have to post a bond? A bond is for the purpose of protecting the decedent's estate in case the personal representative mismanages the estate. Depending on the size of the estate, bond premiums can be $2000 or more per year.If the will waives bond or you can get all the beneficiaries to waive bond, you probably won't have to post a bond, however the Court can always order the personal representative to be bonded if the Court believes it is warranted. Bonds are usually required if the administrator or executor live out of state. To obtain a bond, you have to provide information to the bond company about your employment, criminal convictions, bankruptcies, and civil judgments against you. Some people are not bondable if they have issues in these areas.

3. What should I do if I am a creditor of a probate estate? If someone has died owing you money and there is a probate opened, you can file a creditor's claim against the estate. You may receive a Notice of Administration if you are a known creditor in which case you have 60 days to file a claim. If you are not notifed of the probate, you have 4 months after the letters testamentary (probate with a will) or 4 months after the letters of administration (probate without a will) within which to file a claim.

4. What if my spouse died and all of his or her property is community property? If all of a decedent's property is held as community property with the surviving spouse, a petition can be used to pass the assets to the surviving spouse. This is a simple petition filed in the probate court but without all the formalities of regular probate and it can be heard in a relatively short time after it is filed.

These are general answers to general questions but remember each probate situation has its own facts and issues which may change the general rules. If you have specific questions about your probate matter, we offer a complimentay 30 minute consultation. Contact us at Pinkerton, Doppelt, & Associates, LLP for probate and other estate planning issues.

The fees for a probate attorney to handle your probate matter are set forth in the Californa Probate Code. Section 10810 escribes the maximum fees an attorney can charge. These are as follows:

4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
If the estate is worth more than $25 million, the Court will determine the fee.

Who is entitled to these fees? The statute allows compensation for both the attorney handling the probate and the executor or administrator (if you have read the previous blogs, you know the difference). So for example, if the estate is valued at $500,000, the statutory fees would be $13,000 for the attorney and $13,000 for the executor/administrator. With a $1 million estate, the fees would be $23,000 each, or $46,000 total. Fees can also be increased by the court if the probate is complicated by litigation or tax issues.

You may be asking how the fee is determined when there is an asset which is mortgaged. For example, you may have a home appraised at $400,000 but it has a $300,000 mortgage. The house is still considered an asset worth $400,000 for purposes of determining attorneys fees.

In addition to the statutory fees for attorneys and executors or administrators, there will aso be costs to file the probate, publication costs, and appraisal fees. For questions about probate or to assist you with the probate process, contact us at Pinkerton, Doppelt, & Associates LLP.

If a person dies and they have a will, there will have to be a probate proceeding to transfer the assets. As you know from reading the previous blog, a probate is simply the court supervised proceeding to determine who the heirs or beneficiaries are and transfer the assets to them.

If person dies and leaves no will ( ie. they died intestate), there will still have to be a probate. The Court will distribute your estate to your heirs at law to be distinguished from the situation where a will names the beneficiaries you want to inherit who may or may not be your heirs. As an example, if you want to leave money to a favorite charity, you have to name that charity in a will or a trust. Without either, your estate will be an intestate estate and be distributed to your heirs, not the charity you had in mind.

The distinction between a will and no will is simply that if no will is found, the estate will be distibuted according to the laws of intestate succession. In California with a decedent who is single, the beneficiaries will be the children; if no children, then to parents; if no parents, then to brothers and sisters or their children. If none of those individuals exist, then the estate will go to grandparents, if they are still alive. If none of those relatives exist, then the estate will go to the State of California.

If the decedent left a spouse, the community property will be distributed to the spouse and if there are no children, the separate property will also pass to the spouse. If there are children, the children will get a portion of the separate property.

The rest of the intestate probate administration will progress just as it does with a will. There will be a petition filed with the probate court to start the process and the court will appoint someone as the administrator of the estate. The assets will be inventoried and appraised, creditors notified, taxes paid if necessary, and assets distributed to the decedent's heirs at law.

At Pinkerton, Doppelt, & Associates, LLP we handle both testate and intestate probate. Initial consultations about your probate matter are at no charge. Probate administration is based on the statutory fee schedule set forth in the California probate code, which we will talk about in the next blog.

This blog entry is the first in a series of blogs about probate, what is is, who is involved, how long does it take, and what does it cost.

Estate planning lawyers use a lot of terms in probate that most laymen do not know the meaning of unless they have been a participant in the probate process. The following is a short glossary of terms used in probate so that you understand who the players are and what the definitions are of commonly used terms.

Administrator - the individual appointed by the probate court to administer the decedent’s estate when there is no will

Beneficiary - the person or persons named in the decedent’s will who are entitled to the distribution of the decedent’s assets. Usually the beneficiaries are the decedent’s heirs but there is no requirement that they be such. If the probate is one where the decedent did not have a will, California laws on intestate succession will determine the beneficiaries who are entitled to a distribution of the estate.

Bequest - a gift under a will

Bond - an insurance policy used to ensure that a legal representative such as an administrator or executor will do his or her job and not misuse or misappropriate funds he or she is in control of

Codicil - an amendment or supplement to a will that modifies, alters, or revokes the provisions of a prior will

Decedent - the individual who died

Estate - All the property that the decedent owned at the time of death

Executor - the individual named in the decedent’s will to administer the decedent’s estate

Intestate - refers to the fact that the decedent died without a will so that his or her heirs will receive the assets of the estate according to the laws of intestate succession

Look for later blogs about other aspects of probate. If we can assist you by answering your questions about probate or handling your probate matter, feel free to contact us.

According to a survey by Martindale-Hubbell at lawyers.com, more than half of the people in America do not have a will or a trust. If you do not prepare a will before you die, your estate will have to go through probate. In fact, if you do prepare a will rather than a trust, your estate will have to go through probate.

Probate in San Diego is the legal process of administering a decedent’s estate so that legal title to property can be transferred from the decedent’s estate to his or her beneficiaries. If the decedent has died in San Diego, the estate will be probated in the San Diego courts. In San Diego County, a petition for probate can be filed in the downtown San Diego Probate Court or the North County Probate Court located in Vista.

For most people, becoming an executor of an estate with a will, or becoming an administrator of an estate without a will, is something that requires the assistance of a lawyer. Sometimes people think they can handle a probate without legal counsel, get involved in the process, and then decide that they are in over their head and need legal assistance. Many clients find the process time consuming and confusing. There are many nuances to filing the correct documents with the Probate Court in a timely fashion. If property is owned out of California such as a timeshare, second home, etc., ancillary probate proceedings have to be set up in those states, which complicates the settling of the estate. Sometimes court appearances have to be made which makes some lay people uncomfortable.

The experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP help many people through the probate process. It doesn’t matter which lawyer you choose to assist you, the statutory fees are the same, however, what we offer is years of expertise in helping clients through the process; no charge for copies, postage, parking, or mileage; convenient location off the Interstate 15, and helpful friendly support staff that will always return your calls, keep you informed of the status of your case, and answer your questions. Give us a call to set up your complimentary consultation about your probate matter. We also handle will contests, preparation of wills & trusts, and litigation.

You have no doubt watched movies or TV shows where everyone gathers in the lawyer's office, solemn and perhaps anxious about the "reading of the will". The will is then read aloud by the lawyer to all interested parties. It is unknown where this idea came from but it never happens in real life. There is no legal requirement that a will or a trust be read out loud to family members. As a practical matter, family members usually know where their loved one's will or trust is located and it may be several weeks until they even consult with a lawyer about what should be done. At that point, the lawyer may even provide copies to the beneficiaries.

With a will, the will is filed with the Probate Court to start the probate process and once that happens, the will is a matter of public record, open to anyone who wants to view it. That is how the public knows so much about celebrities and their wills.

If you have a trust, the trust which becomes irrevocable at your death, your beneficiaries and heirs are entitled to a copy of the trust but your trust does not become public. Privacy is one of the advantages of a trust over a will.

If you need assistance with determining what needs to be done after the death of a loved one, contact the estate planning attorneys at Pinkerton, Doppelt, & Associates, LLP. We can help with probate or trust administration. Feel free to call us with any question you have about probate, trust administration or any other estate planning question.

If you have a will and not a trust, when you die your estate will have to go through probate. In general this means that all the property that the deceased owned at the time of death such as real property, personal property, bank accounts, investment accounts, etc. will be part of the probate estate. However there are some exceptions. You may have in your estate some assets that do not go through probate in California. These are some of them:

1. Property held in joint tenancy. 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 bypass probate and are paid directly to the named beneficiaries.

Another way you can avoid probate is to transfer your assets into a revocable living trust. Assets which have been transferred into the name of the trust are non-probate assets. Contact the experienced estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP if you would like more information about a trust or putting your assets into some other form which will avoid probate.

In our last blog, we talked about the timeline for probate in San Diego. Another question we are asked frequently is who is going to be appointed the executor or administrator of the estate? If there is a will created by the decedent, the will usually names the "executor." If that individual is unable or unwilling to serve and there are no successor executors named in the will, then the court may be asked to appoint an administrator with will annexed also known as an administrator CTA. If a person dies without a will, the person who handles the estate is called the "administrator." All administrators and executors have the same function which is to oversee the decedent's estate, including evaluating assets, paying bills, and distributing the estate to the beneficiaries.

Any interested party can petition the court to become the administrator. An interested party could be a family member or even a friend. There is however an order or priority which is set forth in the Probate Code. The following list shows the persons who have priority if they choose to be appointed:

1. Surviving spouse or domestic partner
2. Children
3. Grandchildren
4. Other issue ("Issue" means one's descendants)
5. Parents
6. Brothers and sisters
7. Issue of brothers and sisters (nieces and nephews of the decedent)
8. Grandparents
9. Issue of grandparents
10. Children of a predeceased spouse or domestic partner
11. Other issue of a predeceased spouse or domestic partner
12. Other next of kin.

Last in the priority list are other interested persons which could be friends of the deceased or even a creditor.

If you have any questions about probate or the appointment of administrators and executors, or want to petition the court to become one, contact us. at Pinkerton, Doppelt, & Associates. Your initial appointment with us is always free of charge.

If your loved one who resided in San Diego has passed away with a will or no estate plan, there will have to be a probate proceeding in the Superior Court. Probate can be a lengthy and complicated process with deadlines that have to be followed. Most people want to know “how long is this going to take?” Every probate is different. There are no simple answers to that question. The time depends on what assets are in the estate, how easily they can be liquidated, whether you own property in other states, and other issues.

The following guideline gives you a basic idea as to what has to be done and when it is usually accomplished, assuming you contact us at Pinkerton, Doppelt, & Associates, LLP or another experienced probate lawyer soon after the death.

Filing the will with the Superior Court - Within 30 days of death

File a Petition for Probate; Publication of Notice in local newspaper - Within 1 - 2 months

Hearing on Petition; Appointment of Executor or Administrator; Bond issued if necessary - 2 - 3 months

Notice to Creditors - Within 2 - 4 months

Inventory of Assets; Appraisal of all assets; Obtain a tax ID number, Pay bills - Within 4 - 8 months, depending on number and type of assets

Filing of an Estate Tax Return if required - Within 9 months of death

Filing of Federal/State Tax Returns - Within 6 - 12 months

Filing of an Accounting if necessary; File Petition for Final Distribution and Distribute Assets - Within 8 - 18 months

The above timeline is a general one. These are most of the steps which will occur but there may be other steps in your situation. Your probate may be longer or shorter depending on your loved one's estate and the court’s calendar. Litigation could also cause delays. If we can help with probate in your situation, contact us to schedule a complimentary appointment.

In the category of “stranger than fiction,” a lawsuit has been filed in Arizona by a man who was cut out of his mother’s will. The problem is that she is not dead yet. Here in the San Dieigo Probate Court, will contests are filed but after the death of the testator (the individual who made a will before their death.)

The lawsuit filed by Robert Jaeger seeks $1 million in punitive and compensatory damages from his brothers and sisters on the basis that they interfered with an expected inheritance by persuading his mother to cut him out of her will. Jaeger claims that he took care of his mother for seven years and in return she promised to leave him her house when she died. His mother changed her will to leave her estate to her other children instead. The mother, Patricia English, says that her son was unemployed, spent her money, failed to find work, and became more and more demanding. In any case, she says, she had the right to decide who should inherit her house when she died. The siblings are fighting over English’s house which has $130,000 equity. She has no other assets.

In Arizona as in California, there is no cause of action for interfering with an expected inheritance. Only Maine and Florida have such causes of action while the person who executed the will is still alive. The court in Arizona has ruled however that the suit can proceed.

Mary Jo Quinn, director of the San Francisco Probate Department has said she has never heard of siblings squabbling in the probate court while the parent is still alive and capable. “Anybody can sue anybody,”she said, “but the trick is they have to prove it.”

Stay tuned.

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.

Have you ever wondered whether someone who murders another person can inherit from their estate? In years past, there have been several California cases where children have murdered their parents, sometimes for money, as was alleged in the famous Menendez case in Los Angeles. Two brothers, Eric and Lyle Menendez, were tried and convicted of murdering their parents in 1989 to inherit what they thought was a $14 million estate. As it turned out, after taxes, loans, and costs of defense, they each would have inherited only about $ 2 million each. They were prevented from inheriting their parents' estate.

The California Probate Code Section 250 has a section that provides that a person who “feloniously and intentionally kills the decedent” is not entitled to “any property, interest, or benefit under a will of the decedent or a trust...” This would also include life insurance proceeds or assets left to the killer as a designated beneficiary. You may remember Scott Peterson who was convicted of killing his wife. He was prevented from receiving benefits from his wife’s insurance policy.

All states in this country have similar laws to prevent someone who kills another from inheriting from the victim of their crime. In addition many states have adopted laws to make it difficult for convicted killers to sell their story and keep the money for themselves. These so-called “Son of Sam” laws came from the case where serial killer David Berkowitz, nicknamed the Son of Sam, was planning to profit from the sale of his story. California passed a “Son of Sam” law in 1986 prohibiting felons from profiting from their crimes. This law was struck down in 2002 as being unconstitutional. Today “Son of Sam” laws are sometimes put into plea bargains to provide that any profits from book deal or movies will go to the U. S. Treasury. Another remedy for victims is that they can sue their perpetrators in civil court, as in the O.J.Simpson case, and obtain a judgment which would be satisfied by book and movie profits.

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.

Some people need extra time to file a personal tax return or an estate tax return. On your personal income taxes, you can apply for an automatic extension to file but it doesn't extend the time to pay. You will have to pay a .5% per month penalty for late payment.

With the payment of estate taxes, you can also apply to receive a 6 month extension. The extension provided for in IRS Form 4768 is automatic. You will automatically receive an extension to file for 6 months however be aware that an extension of time to file is not an extension of time to pay the taxes. An extension of time to pay is discretionary.

One executor and trustee of an estate found this out the hard way. In a court case entitled Baccei v. United States, a trustee of a revocable living trust hired an accountant to prepare the Federal estate tax return. The accountant filed Form 4768 requesting a 6 month extension of time to file the return. Part of the form contains a section for an explanation as to why the estate needs more time to pay the tax and the number of months requested, up to 12 months. The accountant did not fill out that part of the form. Within 6 months, the accountant filed the return and paid the estate tax. The IRS then assessed a late penalty on the estate tax paid which had been approximately $1 ½ million. The Trustee appealed.

The Court which heard the matter held that the estate had not requested an extension to pay, only to file, and therefore the late penalty was proper. The two extensions found in Form 4768 are separate extensions and have to be separately requested.

Filing and paying tax returns for an estate is one of the jobs of the executor of a will or the trustee of a trust. If you are the executor of an estate or the trustee of a trust, these are part of your fiduciary duties. Our office handles numerous probates and trust administrations in which we assist executors or trustees with these types of duties. If we can be of assistance, please contact us.

In California, the transfer of a car or other vehicle can be done without probate through the DMV. If you are an heir of someone who has died, you can transfer title even though there will be a probate or trust administration. You do have to wait at least 40 days from the date of death before you can transfer ownership.

The DMV form called "Affidavit for Transfer Without Probate" must be completed for all motor vehicles licensed in California. In additional to this form you will also need the Certificate of Title, an Odometer Disclosure Statement, a Statement of Facts, and pay the transfer fee.

DMV offices are located all over San Diego County, in the cities of Oceanside, El Cajon, Chula Vista, Poway, Escondido, Claremont and downtown.

Our experienced probate lawyers at Pinkerton, Doppelt, & Associates, LLP can assist you with any other issues you have relating to probate in San Diego County.

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.

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.

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.

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.

Even when a person dies with a will or a trust, there can be disputes that result in a will contest or trust litigation. An individual may feel he or she should have been a beneficiary under a will or a trust. Sometimes a will has been changed and beneficiaries under the original will feel there has some impropriety surrounding the execution of the subsequent will. Sometimes beneficiaries may be dissatisfied with the accounting of the assets in the estate. When these types of issues occur, it may become necessary to seek the assistance of the court to resolve these issues. Common grounds for contesting a will are such things as claims of undue influence, lack of mental capacity, fraud, or an invalid codicil (amendment).

With a trust, individuals who are beneficiaries or think they should be a beneficiary may dispute the trust. Issues can arise such as the validity of the trust or amendments, the administration of the trust, or conduct of the trustee. Sometimes trustees have to be removed for misconduct or impropriety or it may be the case that beneficiaries have to initiate litigation to receive a fair distribution.

Handling a will or trust litigation matter requires special experience. If you have concerns about a will or a trust or believe you should have inherited from one, the experienced estate planning lawyers at Pinkerton, Doppelt, & Associates can assist you. Call or e mail us for a complimentary, confidential in-house consultation.

In San Diego, many opposite sex and same sex couples have been married since the week of June 16, 2008. The California Supreme Court has issued a Writ of Mandamus to the California State Officials to not deny the issuance of marriage license based upon the sex of the betrothed. As such, there are now same sex spouses in California and these marriage are legal as of today and, as all know, there is a proposal for an initiative on the November, 2008 Ballot for same sex marriages to be unconstitutional. Whether the marriages are ultimately held valid or void, it is possible that a same sex spouse married in June of 2008 who passes away before the November elections, would have their estate treated the same as opposite sex spouses which would involve probate if there was not a revocable living trust.

In San Diego, there are two court houses for probate cases: San Diego and Vista. Our law office of Pinkerton, Doppelt & Associates, LLP would be pleased to offer a complimentary and confidential consultation to both same sex and opposite sex spouses for representation in probate or for the preparation of a revocable living trust. Please feel free to e mail or call us to set up an appointment.

In San Diego, there are two Probate Courts. One court is in San Diego and the other court is in Vista. The Judges follow the Probate Code and this requires, in some instances, a bond be placed with the Court. This is not an unusual procedure in Court however we find many of our client's are unfamiliar with the bonding process and are insulted by this requirement. The probate process, in and of itself, can be confusing enough.

The bond can be posted in cash with the Court. Most parties to a probate action, however, post the bond through a bonding agency. Bond Services of California is one bonding company and there are others. We do not endorse or recommend this company and list this for informational purposes only. Please make sure to check with the Better Business Bureau of San Diego for any companies in San Diego [including bonding companies] or in the city in which you need the services. Our firm of Pinkerton, Doppelt & Associates, LLP can assist with the liaison of a bond as needed. There are strict requirements for being bonded as well and this can be a complicated and confusing area.

Please feel free to e mail our firm or call for a complimentary and confidential consultation if you are seeking a probate attorney or have a question regarding the need for a bond in a probate case.

In San Diego, as in many of our previous postings, our law firm of Pinkerton, Doppelt & Associates, LLP has helped thousands of clients avoid probate fees and costs. The death of a loved one [and often a financial provider] can leave families financially devastated during this time. The probate fees in San Diego are 4% of the first $100,000, 3% of the second $100,000 and 2% of each next $100,000 in increments. In addition, probate can take more than one year for distribution and there is no privacy.

In fact, there are business' which advertise to beneficiaries [heirs] in probate cases and offer to advance them money pending the distribution by the Court. One company's website is included in this posting and our firm has no connection with this entity and does not endorse them nor their product. This is posted for the sole purpose of our firm using our education, training and experience to try and protect our client's rights and try and obtain their legal goals and to avoid having our client's in the financial position where they have no option but to pay for an advance on their own inheritance. Of course, once a probate is open, many persons have no choice given the financial position post death of a spouse or other financial provider such as a parent.

In our firm, our revocable living trust can avoid probate fees, costs and time thereby eliminating the need for advances which cost money to the beneficiaries. Please e mail us if you need a probate attorney would like to avoid probate with an estate plan prepared for you or for a complimentary and confidential consultation on any estate planning matter.

Before paying any company or hiring them, make sure to check whether they are members of the Better Business Bureau and what their record is with that company. The BBB is a legitimate method of ascertaining the credibility and reliability of any company and our firm has been members of the San Diego Better Business Bureau for many years and is proud of this and our record with them. On our website, we also display their logo and this is a link directly to our record with the BBB for any potential client to view.

San Diego has many divorced spouses. A recent case in the Court of Appeal published March 27, 2008 and modified on April 16, 2008, illustrates the need for an estate plan post divorce. The attorney fees were ordered to be paid by each party so both sides spent thousands of dollars in litigation when a proper estate plan would have avoided this costly and time consuming litigation. Do not let this happen to you or your beneficiaries. The investment in the cost of a revocable living trust alone would have saved thousands of dollars in legal fees and costs.

The case of Estate of McDonald involved a divorced man and woman. The parties had a legal judgment and this included that there was a termination of all marital property rights. The man died without an estate plan and the case went to Probate Court. The woman alleged that she was the rightful heir under the laws and the parents of the man alleged that they were the rightful heirs under the law. The Trial Court found that the woman was not the "surviving spouse" under the terms of the Probate Code. The Court of Appeals agreed.

At our firm of Pinkerton, Doppelt & Associates, LLP, we do not want your family to incur thousands in legal fees and costs when this is not necessary. Please e mail us if you have any questions or call for a complimentary and confidential consultation.

In San Diego, there are many probate cases. These are heard in the probate court houses located at the Madge Bradley Court House in San Diego and the North County Court House in Vista. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist you with any probate matter in San Diego. You can feel free to e mail our firm or call.

An illustration of a famous probate case, which is not in San Diego, is that of Heath Ledger. An article in the Herald Sun explains that his fortune will go to his infant daughter as opined by two legal experts. This is a much more complicated case since Heath Ledger has substantial assets in Australia as well as the United States.

Please feel free to call us to represent you in your pending probate matter in San Diego, California.

San Diego, California has two probate courts. The first is located at the Madge Bradley Court House located on Fourth Avenue in San Diego. The second is located at the North County Court House located on Melrose Avenue in Vista. Judge Klein has the current assignment and, at the San Diego County Bar Association meeting in January of 2008, it was announced that there would be a change to Judge Brown.

It is very important to retain a law firm which has experience practicing before the Judge who will hear the case. This is important since the attorney needs to know the local rules of San Diego as well as the court room practice before each Judge. While all Judges follow the same laws, the procedures in the court rooms may be different. For example, some Judges allow attorneys into the "well" which is the area between counsel table and the "bench" where the Judge sits and some do not. Our law firm of Pinkerton, Doppelt & Associates, LLP can use our experience before the Probate Judges to assist with your legal matter. Please feel free to e mail us with any questions. Please feel free to visit our probate page on our website.

In Illinois, a Probate Judge is expected to hear testimony about the disappearance of Steve Fossett. As all recall, his body was never found. This also happens in San Diego as well and the procedure is to have the case probated. In the Fossett case, the wife of Steve Fossett is expected to testify that she has good reason to believe that her husband died when he was never found after flying in the Nevada desert. Many of the residents of San Diego habitually fly over the desert in Nevada and also go to Las Vegas. The issue of what happens when a body cannot be found is complex and complicated.

There is a legal rule in California that a person who has been missing for less than seven years is presumed to be alive unless evidence shows otherwise. There is a need in this case for a ruling of the husband being deceased for legal purposes of the wife and the estate. You can view the full article on Pinkerton, Doppelt & Associates, LLP website which has a daily newsletter for estate planning or go to the website for the Chicago Tribune which had details of the full article as our newsletter changes daily for the most up to the date news on estate planning. Always feel free to e mail us as well.

In San Diego, California, there are two probate courts which are located in downtown San Diego at the Madge Bradley Court House and in Vista at the North County Regional Center. The Business Office is open from 8:30am to 4:30pm at these two locations however you must check your local branch first as all are closed on court holidays and these may not be holidays on your schedule. It is important to understand that the probate process includes the Probate Examiner who reviews all documents for legal requirements and content before the relief is granted by the Court. You can make an appointment to meet with the probate examiner and this information can be obtained at the court house. It is important to consult with an experienced attorney first since this process can be very confusing and frustrating to the novice and, sometimes, even to the experienced.

The technicalities can become very important and, at times, there is a need for publication. This is an important aspect of the probate process since the publications must by by a list of the approved newspapers by the San Diego Superior Court. This list was last revised on October 10, 2007 and there are over 30 to choose from. As the costs for filing, service and other mandatory fees can be very expensive, it is important to make sure that the newspaper is approved for publication or you will have to republish and this will cost twice. This list is frequently revised so it needs to be checked prior to making any arrangements for publication. In addition, it is important to have the least expensive newspaper to save money since all are equally qualified. The most current list can be obtained free of charge by e mailing our law firm of Pinkerton, Doppelt & Associates, LLP at lawyer@help411.com.

In San Diego, California, there are exact rules for becoming a guardian which is an appointment by the Court. There are different standards depending on the legal relationship between the minor and the guardian. For example, if you are a relative of the minor then the investigation is completed by Family Court Services. Family Court Services is the mandatory mediation process used in San Diego, California and the mediators are licensed clinical social workers hired by the Court to assist in the agreements and/or recommendations regarding custody and placement of minors. Guardianships are only for minors and this is the age of 18 in California. If you are not the relative of the minor, then a contact with the San Diego Department of Health and Human Services will need to be contacted. Their phone number is 858-616-5907 however numbers often change. If you call and this is not the correct number, please feel free to call the office and we can assist in getting the correct number.

If the guardianship is for the estate only, you will need to contact the Probate Investigators in the Vista Court House at 760-806-6150 or the Probate Investigators downtown at 619-687-2000. This is a very complicated area of the law and the guardianship can be for the person, estate or the person and estate. An analysis really needs to be made at the beginning of the case for the best chance of success. Please visit our website at Pinkerton, Doppelt & Associates, LLP or e mail us for any questions you may have at lawyer@help411.com.