International Wills

I have been practicing law since 1994. I have been extremely focused on the areas of estate and probate law during that time.  Through those years I have a number of clients who have property in other countries. Usually we agree that they will talk with an attorney in the other country.  As you might have guessed many countries have far simpler laws for passing assets, after death, than we do here in California. Some not as easy.  The one, almost uniform, constant I have found is that most countries do not honor our living trusts. That is, the concept of a revocable living trust generally is not one that carries over. There are some exceptions but even then they might prefer, or require, the use of THEIR countries trust and not a US trust.

The use of a home country will is fine. As long as the two wills clearly do not revoke the other one there should be no problem. Yes, watch out for probate but beyond that having a will in the other country should be fine. Just try to meld it with your US will so they work together.

I was recently talking to a colleague about a high net worth client with property in another country.  One thought they had was to use an international will. I must admit my use of international wills is limited but in my research I have to agree this is a great item to consider when you own property in another country. In fact, qualifying your “California” will as an “international” will really is not that difficult.

The the International Institute for the Unification of Private Law (UNIDROIT) held the Convention Providing a Uniform Law on the Form of an International Will in Washington DC in 1973. They developed the guidelines for an international will. The entire text is below. However, in summary the requirements are:

- the will is for one person (not a dual will);

- the will shall be in writing and in any language;

- the will must be signed in front of TWO witnesses;

- the will must be signed in front of an authorized person (attorney);

- all signatures are at the end of the will;

- the testator signs every page;

- every page is numbered.

Again, the full act is below. If you want to talk about an international will for you please contact us.  -John

 

CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL (WASHINGTON, D.C., 1973)

The States signatory to the present Convention,

 DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an “international will” which, if employed, would dispense to some extent with the search for the applicable law;

HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:

Article I

1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.

2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.

3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.

4. Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.

Article II

1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.

2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.

Article III

The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

Article IV

The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

Article V

1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.

2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.

Article VI

1. The signature of the testator, of the authorized person, and of the witnesses to an internatíonal will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

Article VII

The safekeeping of an international will shall be governed by the law under which the authorized person was designated.

Article VIII

No reservation shall be admitted to this Convention or to its Annex.

Article IX

1. The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.

2. The Convention shall be subject to ratification.

3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.

Article X

1. The Convention shall be open indefinitely for accession.

2. Instruments of accession shall be deposited with the Depositary Government.

Article XI

1. The present Convention shall enter into force six months after the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification or accession.

Article XII

1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has reccived the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.

Article XIII

1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.

Article XIV

1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.

Article XV

If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.

Article XVI

1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:

(a) any signature;

(b) the deposit of any instrument of ratification or accession;

(c) any date on which this Convention enters into force in accordance with Article XI;

(d) any communication received in accordance with Article I, paragraph 4;

(e) any notice received in accordance with Article II, paragraph 2;

(f) any declaration received in accordance with Article XIII, paragraph 2, and the date on which such declaration takes effect;

(g) any denunciation received in accordance with Article XII, paragraph 1, or Article XIII, paragraph 3, and the date on which the denunciation takes effect;

(h) any declaration received in accordance with Article XIV, paragraph 2, and the date on which the declaration takes effect.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized to that effect, have signed the present Convention.

DONE at Washington this twenty-sixth day of October, one thousand nine hundred and seventy-three.

ANNEX

UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

Article 1

1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.

2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

Article 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

Article 3

1. The will shall be made in writing.

2. It need not be written by the testator himself.

3. It may be written in any language, by hand or by any other means.

Article 4

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

Article 5

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

Article 6

1. The signatures shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

Article 7

1. The date of the will shall be the date of its signature by the authorized person.

2. This date shall be noted at the end of the will by the authorized person.

Article 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

Article 9

The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

Article 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

CERTIFICATE

(Convention of October 26, 1973)

1. I, . . . . . . . . . . . . . . . . . . . . (name, address and capacity), a person authorized to act in connection with international wills

2. Certify that on . . . . . . . . . . . . . . (date) at . . . . . . . . . . . . . . . . (place)

3. (testator) . . . . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth) in my presence and that of the witnesses

4.     (a) . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth)

(b). . . . . . . . . . . . . . . . . . . . (name, address, date and place of birth)

has declared that the attached document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6.     (a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

– I have mentioned this declaration on the will

* – the signature has been affixed by . . . . . . . . . . . . . . . . (name, address)

7.     (b) the witnesses and I have signed the will;

8. *  (c) each page of the will has been signed by . . . . . . . . . . . . . . . . . . . . . . . . . . and numbered;

9.   (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10.  (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;

11. * (f) the testator has requested me to include the following statement concerning the safekeeping of his will: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12.                                 PLACE

13.                                 DATE

14.                                 SIGNATURE and, if necessary, SEAL

* To be completed if appropriate.

Article 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.

Article 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.

Article 13

The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.

Article 14

The international will shall be subject to the ordinary rules of revocation of wills.

Article 15

In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

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California Heggstad Petitions and Kucker v. Kucker

I recently had the following calendar note in a probate case in Alameda County. We had filed a Heggstad petition, pursuant to California probate code 850, to get two properties into a trust after death. I should clarify our firm had NOTHING to do with the case before death. We pride ourselves on helping our clients properly fund their trusts. However, this woman died without these two properties in the trust. The calendar note from the Alameda county probate court provided:

*For Judicial review: Note that the trust does not specifically identify the real property located in Redwood City . In Kucker v Kucker, it was confirmed that the statute of frauds applied to a trust in real property. As in Kucker, the trust has not specifically identified the property in question. PC 15206 provides that a trust in real property is not valid unless it identifies the real property with some specificity.

I had, of course, heard of Kucker but had not seen a court mention it. I thus looked it up. The entire case is below and is great reading… if you do a lot of Heggstad petitions. It goes through the laws at a much deeper level than most blog posts do. Check it out below. If you want to talk about your Heggstad case contact us. You can always reach us at www.heggstadpetition.com. Or if you are an attorney and want to associate us in to help you with your client’s case we can do that too in some situations. Again, contact us and let’s talk! -John
192 Cal.App.4th 90 (2011)

MEGAN KUCKER et al., as Trustees, etc., Plaintiffs and Appellants,
v.
MEGAN KUCKER, Respondent.

No. B225165.

Court of Appeals of California, Second District, Division Six.

January 26, 2011.

91*91 Ferguson Case Orr Paterson, Robert B. England, Sandra M. Robertson and David Shea for Plaintiffs and Appellants.
92*92 OPINION
YEGAN, J.—

Megan Kucker and Bonnie Alexander are successor trustees of the Mona S. Berkowitz Trust (the Trust). They filed a petition to confirm that shares of stock were an asset of the Trust. (Prob. Code, § 850, subd. (a)(3)(B); see also Estate of Heggstad (1993) 16 Cal.App.4th 943 [20 Cal.Rptr.2d 433].)[1] The shares had been owned by the deceased trustor, Mona S. Berkowitz (Trustor). Appellants appeal from the probate court’s order denying their petition. The probate court erroneously concluded that the Trustor’s general assignment to the Trust of her personal property was ineffective to transfer the shares of stock to the Trust. We reverse.
Background
On June 29, 2009, at the age of 84 years, Trustor signed a declaration creating a revocable inter vivos trust. On the same date, Trustor signed a general property assignment (the General Assignment) stating, “I … hereby assign, transfer and convey to Mona S. Berkowitz, Trustee of the [the Trust], all of my right, title and interest in all property owned by me, both real and personal and wherever located.” Trustor also signed a pour-over will leaving her entire probate estate to the Trust.

On October 29, 2009, Trustor signed an amendment and restatement of the Trust. On the same date, Trustor signed an assignment transferring to the Trust all of her shares of stock in 11 specified corporations and funds. The amendment and restatement designates appellants, Trustor’s daughter and niece, as successor trustees upon the death of Trustor.

Trustor died in November of 2009. In February 2010, appellants filed a petition to confirm that 3,017 shares of stock in Medco Health Solutions, Inc. (Medco), were an asset of the Trust. Medco was not mentioned in the assignment of stock signed by the Trustor on October 29, 2009. Appellants declared that the Medco shares “were not held in the Trust’s brokerage account at the time of the Trustor’s death.” Appellants further declared that the stock certificate for the Medco shares had been lost and that the shares had a market value in excess of $100,000. Appellants contended that, based on the General Assignment, “it was the intent of the Trustor that all stock owned by the Trustor, including the Lost Certificate Shares, be part of the Trust Estate of the Trust.” The record on appeal does not include any opposition to appellants’ petition, and we assume that none was filed.

The probate court conducted a hearing on the petition. The record does not include a reporter’s transcript of the hearing. In its written ruling, the probate 93*93 court stated: “During oral argument …, counsel suggested that Probate Code section 15200 et seq. and 15207 [oral trust in personal property], in particular, provided a basis for granting the petition for order confirming assets in the trust estate. The Court has reviewed these code sections. The Court agrees that an oral trust can be created for personal property. If clear and convincing evidence is presented, the Court may conclude that an oral trust has been created. [¶] However, the Court believes that Probate Code section 15207 must be read in conjunction with Civil Code section 1624(a)(7). In those instances where the settler intends to transfer assets in excess of $100,000, a writing specifically describing the property is required. Accordingly, the petition confirming assets in the trust is denied.”
Standard of Review
“The [probate] court’s construction of the Probate Code is subject to our de novo review. [Citation.]” (Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1124 [116 Cal.Rptr.3d 315].) Because there is no conflicting extrinsic evidence as to the Trustor’s intent, we independently review the written instruments at issue. (Ike v. Doolittle (1998) 61 Cal.App.4th 51, 73 [70 Cal.Rptr.2d 887].) Since appellants have not provided a reporter’s transcript of the hearing on the petition, “we must treat this as an appeal `on the judgment roll.’ [Citations.] Therefore, … [o]ur review is limited to determining whether any error `appears on the face of the record.’ [Citations.]” (Nielsen v. Gibson(2009) 178 Cal.App.4th 318, 324-325 [100 Cal.Rptr.3d 335].)[2]
Discussion
The probate court’s reliance upon Civil Code section 1624, subdivision (a)(7), is misplaced. This section provides: “(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent: [¶] … [¶] (7) A contract, promise, undertaking, or commitment to loan money or to grant or extend credit, in an amount greater than one hundred thousand dollars ($100,000), not primarily for personal, family, or household purposes, made by a person engaged in the business of lending or arranging for the lending of money or extending credit. For purposes of this section, a contract, promise, undertaking or commitment to loan money secured solely by residential property consisting of one to four dwelling units shall be deemed to be for personal, family, or household purposes.” The probate court’s 94*94 construction of this section is an error that “`appears on the face of the record.’” (Nielson v. Gibson, supra, 178 Cal.App.4th at pp. 324-325.)

(1) “`When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.”‘ [Citation.] `In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.’ [Citation.]” (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043 [12 Cal.Rptr.3d 343, 88 P.3d 71].)

(2) Civil Code section 1624, subdivision (a)(7), cannot be construed as applying to the transfer of shares of stock to a Trust. The plain meaning of the words of the statute manifests a legislative intent to limit the statute’s application to agreements to loan money or extend credit made by persons in the business of loaning money or extending credit.

The probate court’s error in construing Civil Code section 1624, subdivision (a)(7), does not mean that appellants’ requested relief on appeal must be granted. Appellants request that “the determination of the [probate] court … be reversed, and a determination made that the Medco Stock was effectively transferred by the General Assignment to the Trust prior to the death of the Trustor.” The probate court impliedly concluded that, irrespective of Civil Code section 1624, subdivision (a)(7), the General Assignment was ineffective to transfer the Medco stock to the Trust. Otherwise, in its ruling the court would not have made the following reference to an oral trust: “The Court agrees that an oral trust can be created for personal property. If clear and convincing evidence is presented, the Court may conclude that an oral trust has been created.”[3]

(3) The probate court erred by not ruling that the General Assignment was effective to transfer the Medco shares to the Trust. In construing the General Assignment, we must implement the Trustor’s intent. (Ike v. Doolittle, supra, 61 Cal.App.4th at p. 73.) The General Assignment and pour-over will show that the Trustor intended to transfer all of her personal property to the Trust. The Trustor’s omission of the Medco shares in the subsequent assignment of October 29, 2009, was an oversight caused by the misplaced stock 95*95 certificate. Appellants declared that the subsequent assignment provided “for the transfer of shares of stock for which certificates had been located.”

The General Assignment was ineffective to transfer the Trustor’s real property to the Trust. To satisfy the statute of frauds, the General Assignment was required to describe the real property so that it could be identified. (Sterling v. Taylor (2007) 40 Cal.4th 757, 772 [55 Cal.Rptr.3d 116, 152 P.3d 420]; King v. Stanley (1948) 32 Cal.2d 584, 589 [197 P.2d 321], disapproved on other grounds in Patel v. Liebermensch(2008) 45 Cal.4th 344, 351, fn. 4 [86 Cal.Rptr.3d 366, 197 P.3d 177]; Osswald v. Anderson (1996) 49 Cal.App.4th 812, 818 [57 Cal.Rptr.2d 23].) But the issue here concerns the Trustor’s transfer of shares of stock, not real property. The statute of frauds does not apply to such a transfer. (Civ. Code, § 1624.) There is no California authority invalidating a transfer of shares of stock to a trust because a general assignment of personal property did not identify the shares. Nor should there be.

The practice guide, Drafting California Revocable Trusts (Cont.Ed.Bar 4th ed. & Sept. 2009 Supp.; hereafter practice guide), supports our conclusion that it was unnecessary for the General Assignment to identify the Medco stock. The practice guide says that such a general assignment of personal property is a commonly used estate planning tool: “Some practitioners have clients periodically assign all (or substantially all …) assets to the trust so that a Heggstad petition (Prob C § 850(a)(3)) can be used to capture any overlooked items.” (Id., § 21.15, p. 845, citation omitted.) A form provided by the practice guide “for use when the client has assumed full responsibility for funding the trust … can be modified to advise the client to return periodically to execute a general assignment of all or substantially all of their assets to the trust so that aHeggstad petition (Prob C § 850(a)(3)) can be used to capture any later acquired items not titled in the name of the trust.” (Id., § 21.5, p. 837.)

(4) In Estate of Heggstad, supra, 16 Cal.App.4th 943, the settlor stated in writing that real property was transferred to himself as trustee, but he never signed a deed. After the settlor’s death, the appellate court affirmed an order declaring that the real property was an asset of the trust. In concluding “that a transfer of title is not necessary when the settlor declares himself trustee in his own property,” the court relied in part upon an earlier edition of the practice guide. (Id., at p. 950.) The court noted: “While practice guides are not compelling authority, they are persuasive when there is an absence of precedent…. `Textbooks dealing with specialized areas of the law, and works on practice, are persuasive indications of what the prevailing law may be.’ (Witkin, Manual on Appellate Court Opinions (1977) § 69, p. 114.)” (Id., at p. 950, fn. 8.) (5) The Heggstad court also stated that the probate 96*96 court’s jurisdiction over trusts includes the “court’s inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust.” (Id., at p. 951.) This power includes the power to add shares of stock to the trust that were omitted because the shares were misplaced.
Disposition
The order denying appellants’ petition to confirm 3,017 shares of Medco stock as an asset of the Trust is reversed. The matter is remanded to the probate court with directions to enter a new order granting the petition. The parties shall bear their own costs on appeal.

Gilbert, P. J., and Coffee, J., concurred.

[1] All statutory references are to the Probate Code unless otherwise stated.

[2] No respondent’s brief has been filed. “[W]e do not treat the failure to file a respondent’s brief as a `default’ (i.e., an admission of error) but examine the record, [appellants'] brief, and any oral argument by appellant[s] to see if [they] support[] any claims of error made by the appellant[s]. [Citations.]” (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1 [23 Cal.Rptr.3d 273].)

[3] Section 15207 provides for the creation of an oral trust in personal property. “Under section 15207, `[t]he existence and terms of an oral trust of personal property may be established only by clear and convincing evidence.’ (§ 15207, subd. (a).) `The oral declaration of the settlor, standing alone, is not sufficient evidence of the creation of a trust of personal property.’ (§ 15207, subd. (b).) According to the California Law Revision Commission comment of section 15207, subdivision (b), `delivery of personal property to another person accompanied by an oral declaration by the transferor that the transferee holds it in trust for a beneficiary creates a valid oral trust.’ [Citation.]” (Estate of Gardner (2010) 187 Cal.App.4th 543, 552 [114 Cal.Rptr.3d 16].)

Bank of America mortgage trust certification form

For some time now I have advised clients to contact their mortgage holder to see about linking their trust to their mortgage. Without that you can leave your trustee with a problem. The house might be owned by the trust but the mortgage is not connected to the trust. When that happens the trustee can have a very difficult (if not impossible) time getting information about the mortgage.  This is a great service that Bank of America is offering and I encourage you to see if your mortgage bank has similar.  The only downside is that they are charging $100 to process the form. Here’s that form:

Borrower Trust Information and Certification Form
Borrower:
Loan #:
Property Address:
Name of Trust:
Date of Trust:
Grantor:
Beneficiaries during Grantor’s Lifetime:
Term of Trust:
Occupants of above property:

l/We, Borrower (s) _________________ certify that the Trust is an inter vivos Trust, and that l/VVe will not alienate or transfer my/our interest in the trust. l/We will remain the beneficiaries of the Trust, and retain all beneficial interest in the trust, at all times during the term of the Loan identified above.  l/We certify that the property will continue to be occupied by me/us as my/our primary residence at all times during the term of the Loan.
By SIGNING BELOW, l/We hereby certify and acknowledge that the foregoing information is true and correct.

____________________

Signature

County of

State of

On _________________ before me, ______________ a notary public of the State of , personally appeared __________________known to me to be the person(s) whose name(s) is(are) subscribed to the within instrument, and acknowledged that he/she/they executed the same.
WITNESS my hand and official seal

Notary public in and for said State
This communication is from Bank of America, N.A., the servicer of your home loan.
TrustInfoCert 6594 09/1 3/2006

Dying on your terms and POLST

My grandma is 98 years old…. or should I say 98 years YOUNG!?  She called last week to tell me about a great article in the LA Times.  It’s about dying on YOUR TERMS. In fact, the headline in the paper was “Dying on your Own Terms” and the headline online is “How to Help Ensure you Die on your Own Terms.”  You get the point though. Here’s a link to that article.  LINK.

Though very healthy at 98 she is a realist. She’s 98 for gosh sakes! Stuff happens and she is aware of it. She has been saying for 20 years that all her friends are dying. So, at her request, I am sending her a few extra copies of the article to share around her care home.

Also, at her request, I am sending the latest POLST form. The POLST form or “pink sheet” is a document for you to go over with your physician. It’s not for the lawyer.  However, I will provide you a link. The state has a bunch of great information on the POLST form. Here’s a link to the page. LINK.

The key with all of this type of stuff is to talk to your loved ones and talk to your doctors. Do not assume and do not ignore. TALK it out!

Best of luck to you and your loved ones.

-John

Robin Williams estate in the news

I was reading this article about Robin Williams’ estate. It is written by a Minnesota lawyer.  I am not saying the story is “wrong” but it is a little misleading. Now that makes for better reading than a 100% accurate story of course. In this story they make a big deal about the high cost of probate in California. Yes, it is high. However, let’s look at the story:

1) It mentions a trust that Robin Williams’ allegedly had. It was called The Domus Dulcis Domus Holding Trust according to the story.  If he had a trust and if the properties were in the trust then there would be no probate for these assets… unless someone brought a trust contest of some variety.  In fact, you can Google that trust name and you will find hits for properties where Robin M. Williams was involved in the transaction. Thus, I think it’s fair to assume he really did have a trust!

2) The story talks about the high costs of probate. However, if Robin’s wife is to inherit, even if no trust, she could do a spousal property petition. This would be significantly cheaper than a full probate as there is no probate code fee schedule as there is for full probates.

It’s just examples but, to me, it changes the complexion of the story. To me the story could be written, “It appears Robin Williams had a trust and will thus avoid the high costs of California probate.” Not as sexy but, if it’s true, it would be a heck of a lot simpler.

By the way, totally off topic, but this appears to be Robin’s house (or one of his houses) and includes pictures. Wow, nice digs!

California Insurance Code Section 10113.71 Form

Have you gotten forms from your life insurance companies giving you the option of providing them an alternate person to receive your lapse notices? I love this! It all stems from California Assembly Bill 1747 which became effective January 1, 2013. It was written into law as California Insurance Code section 10113.71. I think it’s a very helpful law. It provides for a 60 day lapse period on policies issued after January 1, 2013. Plus the insurance company must provide notice of the lapse to everybody including your designated person. To me this makes very good sense. With people moving around so much providing the insurance the address of the most stable friend or relative you know can’t hurt. If your insurance company hasn’t contacted you with a form to fill out I encourage you to contact them to ask them for their form. If you use your favorite search engine to search for your your life insurance company and words such as, California notice and designation for secondary addressee form, you should find it.  Good luck.  -John

 

Ask your parents some tough questions to help everybody

Back in 2012 I posted a blog about talking to your parents about their estate plan. I called it “5 Questions to ask YOUR parents about their estate plan.”  I encourage you to read it before reading on….

The key here is that it’s a sensitive thing and, often, when dealing with your parents it can be tough. Heck, they are your elders, your respect them, you don’t want to look like a gold-digger. The 5 questions I posted back in 2012 are:

1) What estate planning documents do you have in place?

2) Can I have a copy of your trust?

3) Who are the financial decision makers in your estate plan?

4) At what age are the assets distributed to the kids?

5) Are all of your assets actually titled in the trust?

Let’s ask five MORE questions. That is, here are 5 more questions to help you help them help you!

1) So, the first question can be asked another way which is “have you done any estate planning?” or “What estate planning have you done?” The key is getting the conversation started. I think this is a good way to break the ice.

2) Do you have health care documents in place and do they have the latest HIPPA language?  Ya, I talk about financial stuff a lot on my blog but don’t forget the medical. Hippa can be a killa’ so make sure your parent’s documents are current!

3) Do you have long term care insurance or other protections in place? In case you didn’t hear the rumor long term care can break the bank! Good insurance can protect them… which ends up protecting you.

4) How is stuff set up for my spouse and/or children?  I like to look at estate planning as a multi-generational, or communal, thing. What your parents do affects you and what you do affects your spouse and kids. Plan it all together!

5) How about I pay for it? Let’s face facts. A lot of elderly people, especially depression (or near depression) era people are a little tight with their money. There is nothing wrong with that but sometimes you have to spend money to make money. Get their estate planning done! You’ll save yourself money in the long run!

Ask these five, and my previous 5, or some combination thereof and you should get the family conversation started… or be uninvited to Thanksgiving dinner and disinherited. (Just kidding)

-John

 

Notifying the California Department of Health Services of a death

How does one go about notifying the California Department of Health Care Services (aka: “Medi-Cal”) of the death of a friend or loved one? You can have an attorney help you or just go to this handy link on their website.

Once there click on NOTICE OF DEATH.

Another screen is brought up where you put in a whole host of information about you, the decedent, their assets, etc….  Just fill it all in, honestly of course, and then wait for Medi-Cal to get back to you.

Don’t forget Medi-Cal generally will take a back seat to other costs of administration in a probate. So a large Medi-Cal bill does not mean you should just walk away from a piece of real estate. We can often get our client’s MONEY IN THEIR POCKET. Medi-Cal just wants the house sold and are ok to get paid after probate. The key is talking to an experienced probate attorney.

If you want to talk about Medi-Cal claims, probate, or any related subjects please contact us.  -John

 

Special Letters of Administration and Mortgage Companies

“My husband died and the mortgage company won’t talk to me.”

This is becoming a common statement that I hear. Mortgages and the actual deed to real estate are NOT connected. They are separate.  So, for example, if a spouse dies with a house in their name the other spouse can often use a “spousal property petition” to transfer assets to themselves without going through a full probate. However, the mortgage, or encumbrance against the property, does not transfer with the “deed” or title.

What?

Say it isn’t so Mr. California Probate Lawyer!

It’s true.

Plus, mortgage companies are making it more and more difficult to communicate with them after death. Sure I have known of people who have pretended to be the decedent and that can last for years but eventually that will stop working. Plus it’s not legally correct to do that!

I recently encountered an interesting situation. Mom and son were thoughtful enough to prepare a deed, before mom died, to transfer her home to her son.

Now, since you read my blog you know this might have negative tax ramifications after death but, putting that aside, it avoided probate so in general it’s fine. However, the mortgage company really doesn’t care about the deed transfer. They do not care because the deed transfer is completely separate from the underlying mortgage. The client wants to talk to the mortgage company about a loan modification.  The mortgage company won’t talk to him since mom is dead. This is truly a problem.

What can be done?

Rightfully so the client wants to avoid a full probate. I do believe a full probate can be avoided. The answer is Letters of Special Administration.

Letters of Special Administration is basically a limited probate. It’s limited to whatever is specified in the petition. The more limited it is the more likely the court will approve it. We thus may ask for limited powers to communicate with XYZ Mortgage Company regarding loan 1234. Or maybe we will ask for general powers related to real estate.

See California probate code 8544 below:

8544. (a) Except to the extent the order appointing a special
administrator prescribes terms, the special administrator has the
power to do all of the following without further order of the court:
(1) Take possession of all of the real and personal property of
the estate of the decedent and preserve it from damage, waste, and
injury.
(2) Collect all claims, rents, and other income belonging to the
estate.
(3) Commence and maintain or defend suits and other legal
proceedings.
(4) Sell perishable property.
(b) Except to the extent the order prescribes terms, the special
administrator has the power to do all of the following on order of
the court:
(1) Borrow money, or lease, mortgage, or execute a deed of trust
on real property, in the same manner as an administrator.
(2) Pay the interest due or all or any part of an obligation
secured by a mortgage, lien, or deed of trust on property in the
estate, where there is danger that the holder of the security may
enforce or foreclose on the obligation and the property exceeds in
value the amount of the obligation. This power may be ordered only on
petition of the special administrator or any interested person, with
any notice that the court deems proper, and shall remain in effect
until appointment of a successor personal representative. The order
may also direct that interest not yet accrued be paid as it becomes
due, and the order shall remain in effect and cover the future
interest unless and until for good cause set aside or modified by the
court in the same manner as for the original order.
(3) Exercise other powers that are conferred by order of the
court.
(c) Except where the powers, duties, and obligations of a general
personal representative are granted under Section 8545, the special
administrator is not a proper party to an action on a claim against
the decedent.
(d) A special administrator appointed to perform a particular act
has no duty to take any other action to protect the estate.

The highlighted portion above is key as it should allow the Special Administrator to deal with the mortgage company and figure out a plan for the mortgage.

Fees in special administration cases are by agreement of the parties. The typical statutory probate fee schedule does not apply. I generally offer these on a flat fee basis to give the client’s the most certainty and avoid surprises.

I should add that special letters can be used in many other situations such as accessing bank accounts to pay mortgages and funeral expenses, investigate safe deposit boxes, and more. The key is getting the court order so it’s all legal!

-John

Could Donald Sterling use a blind trust?

Donald Sterling has a pretty large net worth.  I don’t know if it’s $2 billion or $3 billion or what exactly it is.  I think most of us estate planning attorneys would call him “high net worth.”  I certainly don’t have any billionaire clients at this time.  Anyway, he is probably busily working with a team of estate planning attorneys to figure out how he can retain control of the LA Clippers in light of his recent racist rampage that has gone public and gone viral!

When I think back to others who have gotten themselves into similar pickles I have thought of owners like Eddie Debartolo, of the 49ers, and Jimmy Haslam, of the Cleveland Browns. It is believed that both men utilized “blind trusts” so as to retain ownership of their beloved teams even if they did lose day to day control.

I actually found a great definition of a blind trust on wiki. It reads:

“A blind trust is a trust in which the fiduciaries, namely the trustees or those who have been given power of attorney, have full discretion over the assets, and the trust beneficiaries have no knowledge of the holdings of the trust and no right to intervene in their handling. Blind trusts are generally used when a settlor (sometimes called a trustor or donor) wishes to keep the beneficiary unaware of the specific assets in the trust, such as to avoid conflict of interest between the beneficiary and the investments. Politicians or others in sensitive positions often place their personal assets (including investment income) into blind trusts, to avoid public scrutiny and accusations of conflicts of interest when they direct government funds to the private sector. A blind trust is often used with those who have come across a fortune within a short period of time (e.g. an inheritance, or a multimillion lottery) in order to keep their identity anonymous to the public.”

The above sums it up pretty well.  Donald Sterling could select someone (it’s best for it not to be spouse, parents, children and certain other related or controlled parties) he highly trusts to be the trustee and that person would make all the decisions over trust assets.  For example, if it were me I would select a non-relative but perhaps someone he trusts more than a relative. Maybe he has a good friend (hard to believe of course) that he has been friends with since 1st grade.  Someone like that could serve as trustee and, while  technically independent, would probably do exactly what Donald Sterling asks him to do.

Other options to serve as trustee would be an accountant, an attorney or even a private professional fiduciary. However, I think the old friend would be best. Or possibly one of the immediate above as the trustee but then select the old friend as a co-trustee or “distribution” trustee who would need to be consulted in certain specific situations!? I am just giving ideas. Of course, there are other options to consider.

The key to the blind trust is that the NBA has to see, and believe, that Donald Sterling has absolutely no control over the team. However, even that might not be enough based on his racial blast, his follow up to the rant, and his history of troubles before this year!

Possibly by doing the blind trust set up the NBA wouldn’t mandate a sale next week!?  I guess we shall see….

-John