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We Can Plan Any Estate In California - The Law Offices of Roy Newman

How You Can Avoid a Family Feud

Posted on | May 31, 2010 | No Comments

The following quote sums up estate planning quite well:

“Family, money and death are a combustible combination,” said Toronto-based attorney Les Kotzer, who has co-authored a new book — “Where There’s an Inheritance ” — a compilation of 80 real-life vignettes taken from his law practice and radio show callers.

Having no estate plan is a recipe for disaster – your mother or father, wife, or child could end up in costly probate litigation if they do not have an advance health care directive and financial power of attorney in place. The government substitute is called a conservatorship (see What is a Conservatorship?) or guardianship (see What is a Guardianship?) . They are expensive to put in place and expensive to maintain.

But that is just one piece of the puzzle. You also have to make decisions about who should get what – and when they should get it. The Portland Press Herald has four tips  to keep things under control: let your family know what you want to do with your personal effects, name a good family member as trustee or executor, watch for pitfalls in how you allocate money in your estate, and think it through from the beginning.

Category: Estate Planning - Generally
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Estate Planning 101: Steve McNair’s Estate Is A Complete Mess

Posted on | September 30, 2009 | No Comments

Steve McNair never had an estate plan in place. He never had a will, a trust, or any other testamentary instrument. Although I frequently warn about the dangers of not having a proper estate plan in place, it is hard to imagine a set of facts that will be more devastating to his heirs. First, he likely made over $75 million over the course of his lifetime. Since he did not shelter that money from the federal government, he now may lose up to 45% of that wealth in taxes. That could be a $33,750,000 error. In addition, his wife will be receiving less money than he may have planned, because the remainder will be set aside for his children when they turn 18.

It is generally not a smart idea to give an 18 year old $10 million in one lump sum. That distribution could have been staggered for the rest of the child’s life to prevent misspending. Finally, because he did not have a trust in place, the entire probate of his estate will be subject to publicity through the media – and now all sorts of unsavory characters have access to the fact that those children will be receiving vast sums of money – which is disconcerting to say the least. Check out this blog’s breakdown of the unfortunate mistakes made in the McNair estate. Contact a San Diego estate planning attorney today to make a responsible step in the right direction for your family.

Category: Uncategorized
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10 Odd Bequests; Or How to Disinherit With Style

Posted on | July 31, 2009 | No Comments

The law regarding wills and trusts has changed greatly over the years. New law makes it difficult to precondition a devise by will or trust on an act that would violate public policy. For instance, California Probate Code § 710 prohibits imposing a condition or restraint on marriages under certain circumstances. In other words, you can’t place a restriction that discourages your son or daughter from marrying a certain person or encouraging their divorce. Likewise, “[i]f a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself, but otherwise unlawful, the instrument takes effect and the condition is void.” California Probate Code § 709. In other words, be careful what you wish for in a will or trust.

The link at the end of this paragraph gives ten examples of odd bequests that may or may not be enforceable in a court of law – but are entertaining nonetheless. Consider the man who preconditioned his wife’s receipt of £330,000 by devising that she could only receive it if she smoked 5 cigars a day (she refused to allow him to smoke). Or the woman who gave her husband $2.00 provided he spend half the money on rope to hang himself. Check out the full list here.

Category: Wills and Trusts
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Michael Jackson “Disinherited” Father in Last Will and Trust

Posted on | June 30, 2009 | No Comments

In a case that will surely be publicized to no end, the first of possibly multiple wills (see “What Will Happen if I Die Without a Will?“) executed by Michael Jackson have been submitted to the Los Angeles Probate Court. The will apparently refers to a trust (see “What is a Revocable Trust?“) in which Jackson titled all of his assets. It appears initially that Michael disinherited his father, Joe Jackson, leaving everything to his mother. The court granted temporary custody of Jackson’s children to Katherine Jackson via a guardianship proceeding (see “What is a Guardianship?“). If this probate is anything like Jackson’s life, there will be plenty of drama in the coming weeks.

Category: Current Events
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Jury Finds San Diego Probate Agent Murdered By Beneficiary of Will

Posted on | September 11, 2008 | No Comments

Michael Ray Jennison was found guilty of second degree murder of a real estate agent hired by a local San Diego probate lawyer. [See the first report here and the second report here.] Jennison inherited part of a condominium from his grandmother (see “What Will Happen If I Die Without A Will?“). Probate agent James Magot was hired to handle the sale of the property, but placed a competing bid against Jennison for its purchase (the forced sale was truly one “Disadvantage of Probate“). The agent and Jennison were involved in an altercation witnessed by a neighbor, after which Jennison shot the probate agent twice in the head. Jennison faces a life sentence.

Category: Current Events
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California Probate Court Upholds Donative Transfer to Friend Who Drafted Will

Posted on | August 30, 2008 | No Comments

The general rule, discussed in detail below, is that a gift or donative transfer in a will to the drafter of the instrument is void, unless the drafter is related by blood, marriage, or is a cohabitant with the testator, or the instrument is granted an independent certificate of review by an attorney. California Probate Code §21350. But another exception is where the transfer is made in a will executed by a nonresident of California who “was not a resident at the time the instrument was executed, and that was not signed within California.” California Probate Code §21351(i).

Joseph Clementi Jr. was a resident of California at the time of his death, but was a resident of Pennsylvania at the time his will was executed in Philadelphia. Estate of Clementi, G039223. His friend and accountant, Richard E. Weisz, wrote the will which included a gift to himself of $100,000, and appointed Weisz as trustee of a charitable trust. Clementi’s estate was worth in excess of $3 million at the time of his death, and his niece and nephews sought to revoke the admission of the will to probate. The beneficiaries argued that since Clementi was a resident of California at the time of his death, the exception should not apply and the will should not have been admitted to probate. The court held that California Probate Code §21351(i) does not require the transferor be a non-resident at the time of death, only at the time of execution, and that the gift to Weisz was valid.

Category: Probate Litigation, Will Contests
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Heath Ledger’s Estate Battle – How the California Result Would Differ Under the Omitted/Pretermitted Child Doctrine

Posted on | August 23, 2008 | No Comments

Heath Ledger executed a will in Australia and afterwards he had a child, Matilda. Because Matilda was not included in the will, in some jurisdictions it is possible that she could be excluded from receiving anything from Ledger’s estate. Matilda’s claim to the estate (and the total she stands to lose) is worth up to $20 million. After learning of the child’s birth, “Johnny Depp, Jude Law and Colin Farrell have shown their respect for the Australian actor who died too young and donated their sizeable earnings from the film, The Imaginarium of Dr Parnassus, to Heath Ledger’s three-year-old daughter (Matilda).”

In California, where a lawyer drafts a will that is later executed, and a child is born afterwards (defined as a “pretermitted” or “omitted child”), there is a statutory presumption the omission of the child was unintentional. Thus, the child may “receive a share in the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.” California Probate Code § 21620. So in California, Matilda would take as if no other devise had been made under Heath Ledger’s will.

There are three statutory exceptions to the pretermitted child doctrine. The first is if the failure to provide for the child in the instrument was intentional, and that intention appears in the instrument. The second exception is if the decedent left substantially of the estate to the natural parent of the omitted child. The third exception is if the omitted child is otherwise provided for outside of the will and that intent is shown by statements of the decedent or from the amount of the transfer or by other evidence. If Heath Ledger’s will was probated in California, provided none of the exceptions apply, Matilda would likely be cared for despite the absence of her name in the will.

Category: Estate Planning of the Rich and Famous
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