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.

At Roy M. Doppelt & Associates, we encourage families or individuals to create an estate plan, consisting of a will or a revocable living trust so your loved ones know how you want your assets distributed. An interesting off shoot from traditional estate planning is an ethical will. Have you ever heard of one?

An ethical will (also called a "legacy letter") is a document designed to pass ethical values or life lessons from one generation to the next. They have been around for centuries and come from the Judeo-Christian tradition. Rabbis and Jewish laypeople wrote ethical wills during the 19th and 20th centuries.

Today, Dr. Andrew Weil, a noted author and doctor of integrative medicine who has written books on health and aging, promotes ethical wills as a gift of spiritual health to your family. Leaving such a document explains to your loved ones their family and cultural background, ethical and spiritual values, life lessons and experiences, and your hopes for future generations.They are becoming more prevalent. Even President Obama has written a legacy letter to his daughters.

There are a number of sources to help you write an ethical will, which could be in the form of a letter, an audio CD, or a DVD. Common themes are personal values and beliefs, spiritual values, wisdom to be passed on, love, forgiveness, and the legacy you leave for the next generation. You also may want to explain why you did certain things in your life, why you chose a certain charity, why you chose certain beneficiaries or made certain distributions, history your family may not know about you, or how your life experiences shaped your life.

An ethical letter is of course personal. We can assist you with estate planning documents to specify your wishes regarding your personal assets but creating an ethical will or legacy letter is something only you can do. It could become the most cherished asset you leave your loved ones.

When a person dies in San Diego, the Probate Court will determine to whom the assets of the decedent will be distributed based on the laws of "intestate" succession. "Intestate" means that the decedent died without a will or a trust. Before you decide to file a probate proceeding without a will, make sure that it is indeed the case that no will or trust can be found. It can make a difference.

Look for a will or a trust in the decedent's home and business files, safety deposit box, or safe. Ask other family members if they recall the decedent mentioning that he or she executed a will or a trust. Find out if the decedent had a family lawyer who may have drafted an estate plan or referred the decedent to an estate planning lawyer. Often estate planning attorneys will keep the originals of clients' estate plans in their fire proof safes. Look through the decedent's collection of business cards to see if a lawyer is among them.

If no will or trust can be found, the steps in the probate process will be the same as for a probate with a will. The difference is in the distribution of the assets. A couple of examples will illustrate the difference:

1. Tom dies with a will or trust leaving all his property, community and separate, to his wife Karen. Tom also has a son. All of the property is distributed to Karen. If Tom dies wihout a will or trust, Karen gets all the community property but only half of the separate property. The child gets the other half.

2. Sally, a single woman with no family, dies with a will leaving half of her estate to her best friend Jan and the other half to a number of charities. If Sally had died without a will and no heirs could be found, her property goes to the State.

3. Mary dies with a trust that sets up subtrusts for her minor children and names a guardian to take care of them and a trustee to manage the trust making distributions at intervals of age 21, 30, and 35. If Mary dies with no estate plan, the Probate Court will have to appoint a guardian with no input as to who Mary would have preferred to raise her children and a guardian of the estate to manage their money until they turn 18.

These examples demonstrate that it can be important to make sure that the decedent in fact died without an estate plan. He or she may have had wishes that will not be carried out through intestate succession. Roy M. Doppelt & Associates would be happy to assist you with creating your estate plan or probating the estate of your loved one who did not.

Will and trust contests continue to produce interesting stories, whether among the rich or the ordinary. This past February, a judge in Hong Kong ruled that the estate of billionaire Nina Wang will not go to her feng shui consultant but to the charitable foundation she and her husband Teddy created in 1988.

Nina's life and death reads like a soap opera. Nina was born in Shanghai and married her childhood friend Teddy Wang who grew rich owning and operating the Chinachem Group, one of Hong Kong's largest and most powerful companies. Teddy Wang was kidnapped in 1983 and his wife paid a $33 million ransom for his return. He was kidnapped again in 1990 and never found. He was declared dead in 1991 and Nina took over the company. There were numerous court battles over his wills but eventually it was Nina who inherited his estate.

Nina drew up a will in 2002 leaving her multi-billion dollar estate to the Chinachem Foundation she and her husband founded. After her death, another will surfaced, dated 2006 and leaving her estimated $4 - $13 billion estate to her fung shui consultant, reported also to be her lover. "Feng shui" is the ancient Chinese system of aesthetics using laws of Heaven (astronomy) and Earth (geography) to help improve life and create peace and harmony. The court ruled however that the will presented by Tony Chan, the feng shui consultant, had been forged. He was later arrested and charged with forgery.

The law office of Roy M. Doppelt & Associates handles numerous will and trust disputes but
usually not with the drama of the rich and famous. Contact us if you have a will or trust dispute or need assistance with any other aspect of estate planning.

The Illinois Supreme Court recently held that a Jewish couple's wish to disinherit any of their grandchildren that married outside their faith was lawful. The particular will had provided that upon the death of the surviving Trustor, if any grandchild had married outside the Jewish faith, their non-Jewish spouse had a year to convert to Judaism. If they did not, the gift would lapse. The Illinois Supreme Court held that the clause was valid as long as the method of disinheritance did not encourage divorce. One of the Justices wrote that the Trustors were "free to distribute their bounty as they saw fit and to favor those grandchildren whose life choices they approved of."

Restraints on marriage contained in wills or trusts are generally held by the Courts to be void as against public policy. In California, Civil Code section 710 provides that conditions imposing restraints on marriage.... are void. Althought there doesn't seem to be as yet a case in California involving a clause such as in the Illinois case, it seems logical that the California courts would rule similarly and uphold a clause that provided for disinheritance of a beneficiary who married outside of a particular faith.

Including a provision to disinherit a particular beneficiary because of religion, or on grounds of substance abuse or other conditions, is a tricky area of estate planning. You should consult an experienced estate planning lawyer if you want to create such provisions. At Roy Doppelt & Associates, we can help you create an estate plan that will contain such provisions. Call us to schedule a complimentary consultation.

There are many reasons why a will or a trust may be challenged and set aside as invalid. Here are some of the more common grounds to contest someone's will or trust.

1. Coercion - If someone coerces the testator (the person creating the will or trust) to make changes in a will or a trust or forces them either physically or emotionally to do something that is not what they truly wish to do, the document can be challenged on the basis of coercion.

2. Duress - If someone exerts pressure upon he testator to change their will or trust or make dispositions they don't want to do, the document could be held invalid on the basis of duress.

3. Undue Influence - This is very similar to duress. Undue influence could be threats, manipulation, isolation, selling falsehoods. Pressuring someone to make changes to their will or trust could be both duress and undue influence and even coercion.

4. Fraud - This ground may occur where someone alters the will or the trust, replaces pages, destroys an amendment, or forges a signature.

5. Improper Execution - Wills have to be signed in front of witnesses who attest that the testator is of sound mind and is who he or she purports to be. Trusts have to be notarized by a notary public who requires identification to verify that the testator is indeed the individual signng his or her trust. Improper execution can invalidate a will or a trust. This ground sometimes appears where a testator has prepared a do-it-yourself document.

6. Lack of Capacity - Testators should be of sound mind and not suffering from a disease or condition that renders them incapable of understanding what they are doing. People who have Alzheimer's disease, dementia, or a brain injury may not be capable of executing a will or a trust. Another example is where the person temporarily lacks capacity such as if the testator is drunk or under the influence of drugs.

7. Incompetence - A testator may be incompetent to create or execute a testamentary document. This ground overlaps with lack of capacity.

If you are concerned about the validity of a will or trust, give us a call. We have experience in estate planning as wells as probate and trust litigation. Your first consultation is complimentary

In the estate planning world we used the term "fiduciary" a lot. Trustees, administrators, executors, and agents under a power of attorney are all "fiduciaries". What does that term mean?

A fiduciary is an individual who undertakes to act for and on behalf of another in a particular matter. A fiduciary has to perform his duties with the utmost of trust and honesty. A fiduciary is expected to be loyal to the person to whom he owes the duty (the "principal"). He must not put his personal interests before the principal and must not profit from his position as a fiduciary unless the principal consents.

The most common circumstances where a fiduciary is involved in estate planning is when a trustee administers a trust. The trustee is a fiduciary who must administer the trust estate for the benefit of the beneficiaries. If an individual dies with a will, the executor of the will is the fiduciary who administers the will and distributes the estate to the beneficiaries. An estate administered for someone without a will is called an administrator, also a fiduciary. All of these individuals have the duty to act with the utmost of loyalty and impartiality.

Other examples of fiduciaries are conservators and agents acting under a power of attorney or a health care directive.These individuals also have the duty to act in good faith and in the best interests of the principal.

The job of being a fiduciary is a serious one. A fiduciary who breaches his fiduciary duties can be held liable on a number of theories including negligence, fraud, financial elder abuse, even criminal prosecution. You should know what is expected of you so that you can properly perform your fiduciary duties.
If you need help, feel free to contact us.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some more outrageous bequests or conditions have been:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

Nine months after the death of Heath Ledger, his estate is being given to his 2 year old daughter Matilda. Ledger had a will he signed in 2003 before the birth of his daughter, leaving everything to his family in Australia. The family has decided to give the estimated 16 million estate to his daughter.

Attorneys for Matilda have also filed a lawsuit against ReliaStar Insurance Co. for bad faith for not paying out on a $10 million life insurance policy Ledger took out in June 2007. He died in January 2008 from an overdose of prescription drugs. The insurance company claims they won’t pay the money until they are satisfied that the death was not a suicide. Insurance policies frequently contain clauses which prevent a pay out if the insured commits suicide. It may be an uphill battle for the insurance company since the New York medical examiner ruled the death accidental.

The case of Heath Ledger illustrates the necessity for updating your estate planning documents after major changes in your life, such as the birth of children. Other events that may dictate a review are divorce, death of beneficiaries, trustees, or executors or a major change in your assets such as from an inheritance or a business venture. If you need a review of your estate plan, call us or e mail us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation.

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

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

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

Do San Diegans fit the national statistics on Estate Planning?

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

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

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

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

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

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.

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

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

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

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

In California, the law regarding limitations on marriage to members of the opposite sex changed and now spouses of both same sex and opposite sex can have wills which are recognized in exactly the same manner under the laws in San Diego and throughout Southern and Northern California. A will is normally part of an estate plan which may or may not include a revocable living trust. In San Diego, if the total value of the estate is over $100,000 [real and personal property included with no offset for debt] then a revocable living trust will save the beneficiaries money in not having to probate the estate. Probate fees and costs are 4% of the first $100,000, 3% of the second $100,000 and 2% of each succeeding $100,000. In addition, probate is a court procedure which is open to the public and information is not private. There are two probate courts in San Diego: one in San Diego and one in Vista.

The California Supreme Court has made its intentions clear in the recent Marriage cases that there is to be no discrimination based upin sexual orientation or same gender spouses. Our law firm of Pinkerton, Doppelt & Associates, LLP would be pleased to offer same sex spouses the same estate planning services as opposite sex spouses under this new ruling. Please feel free to e mail or call our firm for a complimentary and confidential consultation.

By some accounts, 70% of adult Americans do not have a will. If you at least have gone to the trouble of getting a will, consider yourself ahead of the curve and pat yourself on the back. Then come back to earth and understand that your work is not completely done. A will is not a static instrument. To serve its purposes, it must keep current with life changes, including an individual's financial circumstances, and with some external factors, such as tax laws. With the help of a professional, you should periodically review your will, staying alert to new or different circumstances that might call for updates. Our law office of Pinkerton, Doppelt & Associates, LLP normally recommends a revocable living trust if you have real property or assets over $100,000. Please feel free to e mail or contact us by phone to set up a complimentary and confidential consultation.

Obviously, a marriage usually brings a new beneficiary into the picture, and a divorce may remove one. Some of the changes in a will prompted by a change in marital status may not be so apparent. For example, when a widow or widower remarries, the will may need to be updated to show how children from the previous marriage and the new spouse are to be provided for.

A new child is a new beneficiary, but a will can and should cover more than just the distribution of property to heirs. Parents can name a guardian, and even an alternate guardian, to care for their children in the event that something happens to both parents. Absent such a provision in a will, a court will appoint a guardian.

The death of an executor, guardian, beneficiary, or trustee creates a gap in how the will is supposed to operate. Fill in the gaps by making necessary changes, such as naming a new individual or, in the case of a deceased beneficiary, simply removing the lost beneficiary from the will.

If you enjoy an unexpected windfall, you may still want the larger pie divided up as before. But it is likely that some changes in your will are called for. If the increase in the potential estate is large enough, it might trigger the need for planning to avoid or minimize estate taxes. A reversal of fortune also could suggest some changes. For example, you may have to revise downward that fixed sum you were planning to leave to a favorite charity.

You will not have to start from scratch if you move to another state, because all of the states recognize a will that was properly created in another state. Nonetheless, legal advice should be sought in the new state because changes in the law from state to state could require some tinkering with the will. There may be more than tinkering involved if you move to or from a community property state.

The Government's intentions can change even if your intentions have not. Some of the changes benefit individuals with wills, but you can take full advantage of them only if you are aware of them. The big item here is the schedule of changes to the federal estate tax exemption, which is the amount an estate can reach before it is subject to a (hefty) estate tax. The good news is that the exemption is headed up. It goes from the current $1.5 million to $2 million in 2006.

If you decide you want to change beneficiaries, a guardian, an executor, or anything else in a will, you can do so. For example, you want to make sure that the beneficiaries in your will are the same as the beneficiaries you have named in your insurance policies and retirement accounts. Otherwise, the beneficiaries actually named in those documents will get the money from them, not the beneficiaries under the will. Bear in mind that no amount of talking about your new intentions will make them happen. The changes must be indicated in a properly executed will.

You should keep the finished (at least until the next update) product in a safe place. When "they" say "keep this with your important papers," think of your will. Your family should know where to find the executed will. An unsigned copy of your will in its latest form is a good starting point for the next periodic review.