Articles Posted in NEWS AND COMMENTARY

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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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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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A person is free to dispose of property as he or she wishes by making a will. There are cases in which a person may enter into a written contract to make certain provisions in their will in exchange for certain considerations. For example, a father may promise to make a will leaving his house to his daughter. In exchange, the daughter agrees to move in with her father and take care of him in his final years.

Court Rejects Breach of Contract Claim Due to Late Filing

When there is an offer, acceptance, and consideration, a contract to make a will is legally binding in California. This means if the person who promises to make the will fails to do so before he or she dies, the other party may have grounds to file a breach of contract lawsuit. Under California law, such lawsuits must be filed within one year of the decedent’s death.

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Living in southern California gets more expensive every year. For many elderly San Diego residents on a fixed income, just paying monthly bills can be a struggle. This is one reason “reverse mortgages” have become popular in recent years.

How Reverse Mortgages Work

Most of us have taken out a home mortgage loan at some point in our lives. The typical mortgage is a 30-year loan secured by the property being purchased. Each month the borrower must make fixed payments towards the mortgage’s principal and interest.

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There are many kinds of trusts used in estate planning. One you may not have heard about before is a special needs trust. This is a trust designed to provide for a person who is receiving certain types of government benefits, such as Medi-Cal or Supplemental Security Income.

Because these programs are means-tested, a beneficiary can lose his or her eligibility if he or she suddenly receives a large amount of cash, say from an inheritance or a lawsuit judgment. But by creating a special needs trust, that money can be placed in the hands of a trustee, who retains legal ownership. The trustee can then use trust funds to purchase goods and services for the beneficiary without compromising government benefits.

Trustee Removed After Questionable Property Deal

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Many people do not bother to plan for their own funerals. They just assume their family will take care of the arrangements when the time comes. If there is disagreement among family members, however, a funeral can quickly turn into a financial and legal battleground. This is why it is a good idea to consider who should plan your funeral as part of your overall estate planning.

Disinheritance Does Not Apply to Funeral Arrangements

Recently, a court in New Jersey had to deal with the fallout from a contested funeral plan. A woman with three adult children passed away. Her will left nothing to the children. The will further stated her estate should pay any “just debts and funeral expenses,” but made no other provision regarding the planning of the funeral itself.

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One of the main benefits of a living trust is that it can make it easier to administer property you own in multiple states. Probate is handled at the state level, so if you own a house in California and a rental property in Arizona, your probate estate would need to open a separate proceeding in each state after your death. However, if you have a properly funded trust, your successor trustee can administer both properties without having to go through probate at all.

New Hampshire Defers to California in Trust Dispute

Even if you have a trust, you still need a will. Typically you sign what is known as a “pour-over will,” a document that basically transfers any remaining probate property at death to the successor trustee of your trust. This is important because it confirms your intent to distribute all of your property through the trust.

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Following a divorce there are a number of collateral issues you need to deal with. Among other matters, you may need to reconsider your estate planning situation. For example, if you and your former spouse created a living trust, you will probably want to revoke that trust and create a new separate trust.

Ex-Wife May Seek Removal of Ex-Husband From Children’s Trust

Of course, unwinding an estate plan is not always so simple, as a recent case from Los Angeles illustrates. This case involves a divorced couple who created an irrevocable trust during their marriage. While most estate planning trusts are revocable, irrevocable trusts are frequently used for legal and tax planning reasons.

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