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Legal agreements governing medical and nursing home care are an often overlooked estate planning issue. If you have a relative that requires 24-hour nursing care, you need to be aware of how certain actions may affect his or her legal rights. For example, many nursing homes insist their residents sign binding arbitration agreements. This means that in the event the resident is seriously injured or dies as a result of the facility’s negligence or malpractice, any claims must be submitted to binding arbitration.

The problem with arbitration is that it short circuits the normal discovery and trial process established by the California court system. Arbitration tends to emphasize speedy resolution of claims over justice. Depending on the type of arbitration clause and forum, victims and their families may not even be able to get honest answers about what happened.

30-Day Cancellation Period Does Not Protect Nursing Home Resident Who Died After 10 Days

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There is an important distinction in estate planning between a power of attorney for financial affairs and an advance directive, also known as a power of attorney for health care. Both documents fulfill a similar purpose – appointing an agent to act on your behalf when you are incapable of doing so for any reason. In many cases, people choose to appoint the same person as agent for both purposes.

Court Invalidates Arbitration Agreement Signed Under Non-Healthcare Power of Attorney

A power of attorney and an advance health care directive are not interchangeable. When it comes to making “health care decisions” for you, a person holding only your power of attorney for financial affairs is powerless to act. Of course, defining what constitutes a “health care decision” is not always so clear.

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For previous generations, disposing of your property at death meant dealing with physical assets and intangible wealth such as cash or stocks. Today we also need to think about digital assets as part of our estate planning. Just think about how much of your life is kept online, from your bank account passwords to family photos on your Instagram page. Now consider what happens to all of that data if you die unexpectedly.

Protecting Your Privacy While Giving You More Control

A recent German case involving a deceased 15-year-old girl’s Facebook page made international headlines. The victim’s parents believed that she was a victim of suicide and wanted to access her social media posts to look for supporting evidence. In May, an appeals court said granting such access would violate the decedent’s “right to privacy,” which outweighed the parents’ “right to inheritance” under German law. As Reuters noted, “Privacy remains a sensitive issue in Germany due to extensive surveillance by Communist East Germany’s Stasi secret police and by the Nazi era Gestapo.”

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A living trust is a common California estate planning tool that helps you avoid probate. In theory a trust is relatively straightforward. You sign a document creating the trust and naming a trustee–usually yourself during your lifetime–and then transfer various assets into the trust. For major items like your home, you will actually need to sign a new deed transferring the real property from you as an individual to you as the trustee of the revocable trust.

Living trusts are not foolproof. There will likely be some assets that you neglect to transfer into the trust while you are still alive. To address this, it is a good idea to have a “pour-over” will, which is basically a last will and testament that gives any remaining property in your probate estate to your living trust at death.

Trusts Can Now be Created After Pour-Over Wills

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A legal separation or divorce can have a profound effect on your estate planning. Under the California Probate Code, a “surviving spouse” has no inheritance rights if there is an “order purporting to terminate all marital or registered domestic partnership property rights.” Put another way, if you die without leaving a will, and you are legally separated from your spouse at the time of your death, he or she will not inherit under California intestacy law.

Court Rules Probate Code Language Does Not Apply to County Pensions

The Probate Code does not cover all property issues that may arise after you die. Many retirement and pension plans are governed by separate laws that allow you to designate a beneficiary independent from the provisions of your will or trust. A divorce or legal separation may not necessarily affect such designations.

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Doing business with family members is always complicated. It can get even more complicated if one family member dies before a business transaction is completed. Most of us are understandably reluctant to push a legal matter, even one involving estate planning, when a relative is ill or possibly dying. Unfortunately, California judges cannot allow whatever sympathy they might feel for the family to override the law.

Sister Waits Too Long After Brother’s Death to Enforce Contract

Consider this recent case from right here in San Diego. A woman and her husband entered into a real estate deal with her late brother. The brother was in the business of “flipping” properties. The sister and brother-in-law were looking to buy a house for themselves.

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There was a time when only legitimate children–i.e., children born to a lawfully married couple–could inherit property from a parent. Modern law in California and most states have largely eliminated the distinction between legitimate and illegitimate children, but it can still be an issue in some probate situations.

For example, a court in the Canadian province of Ontario recently denied a man a share of his late grandmother’s estate because he was born out of wedlock. The grandmother’s will, which she signed in 1977, left shares to each of her “children” or their descendants. Ontario law at the time defined “children” as only including those born in wedlock. Ironically, Ontario changed the law in 1978 to include illegitimate children, but the court in this case said that did not apply to pre-1978 wills.

Establishing Paternity When There is No Will

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If you die without a will, California’s intestacy law dictates how your estate must be distributed. For example, if you are married at the time of your death, your spouse is entitled to a certain share of your property under intestacy. But if you are legally separated when you die, then your spouse does not inherit.

Living Apart Does Not Necessarily Prove the Marriage is Over

What does “legally separated” actually mean? Is it enough if you and your spouse are living in different homes? A California appeals court recently addressed this question in the context of a tragic case from Los Angeles.

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The term “trust” refers to an arrangement in which one person holds property for the benefit of another. In estate planning we commonly use revocable and irrevocable trusts as tools to bypass traditional probate. You give your assets to a trustee, who then administers the property for the benefit of the persons you name in the trust instrument.

Sometimes the word “trust” is used to signify something else. For example, you may have heard the term “Totten trust” used by banks. A Totten trust is really not a trust; it is a type of payable-on-death bank account. The person establishing the Totten trust has the unrestricted ability to withdraw money from or close the account. The “beneficiary” is simply the person who receives the remainder of the account, if any, upon the account holder’s death.

Court Imposes “Constructive Trust” After Stepson’s Mistake

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Not every California estate has to go through a formal probate administration. If you do careful estate planning and transfer all of your personal assets into a living trust, for example, you can ideally leave no probate estate at all. But even if you do not have a trust, if you leave a California estate worth $150,000 or less, your heirs can use a simplified affidavit process to transfer certain personal property without going to court.

Court Penalizes Stepdaughter for “Fraudulent” Affidavit

The affidavit process only applies to personal property such as bank accounts and stocks, and not real estate, like your house. The person who has the legal right to inherit the property must file the affidavit after your death. If you have a will, that means the beneficiaries you named to inherit your property. If you do not leave a will–i.e., you die intestate–then your heirs under California law have the right to file the affidavit.

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