Category Archives: General Legal

Estate Attorney Video

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Several years ago I had a video professionally made. It was through our yellowpages.com advertisement which we don’t even do anymore. I felt the video was too canned and just not who I am.  I wanted my clients and potential clients to know ME.  Please check out my video on my Youtube channel and let me know what you think. 

http://www.youtube.com/watch?v=B3Vu-rE3cBM

For more information about California wills, trusts, probate and trust administration please contact me directly or visit our website at www.californiaprobate.info

-John

Family Time

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Sunday is a nice day to spend with family. My family often goes to breakfast at our favorite restaurnt, the Original Pancake House in Roseville, California.  We often see friends there which is nice.  Of course when you spend this time with family it can make you reflect on the importance of planning for your family. Ok, so being an estate planning attorney and having lost my dad when I was 14 I am more aware of this than average I admit.

However, next time you are spending some quality moments with your spouse and kids think about your family.  Have you done all you can do to minimize taxes, avoid probate, ensure your wishes are followed, make sure your kids money is there for them when they go to college, increase the chances of there still being money when they get married, and the list goes on.  All of these things and so much more can be accomplished by proper estate planning with a licensed California attorney.

Being a Certified Specialist in estate planning, trust and probate law I encourage you to only work with a Certified Specialist. Work with someone who has dedicated their professional life to this area of law. Work with someone dedicated to making your wishes a reality.

Contact me with any questions. Also, feel free to browse our main probate and estate planning web page at www.californiaprobate.info

Happy Sunday.  -John

Learning what you don't know

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Like most things in life preparing wills and trusts is something you can not learn in one day. In fact, you can’t learn it in one year.  I was reminded of this last week at a continuing education seminar I attended. I have been doing this type of work since 1994 and, in fact, been practicing exclusively in this area of law for the majority of the time. However, I still learn new things! I go to continuing education to learn about the latest laws, the latest ideas, but also to go a level deeper in my knowledge. I want to dissect detailed areas of the law and understand them!

Each time I go to a new deeper level I realize how unfair it is, to you the general public, for attorneys to dabble in an area of law. Wills and trusts looks so easy on the surface level but it is so deep and involved and so easy to mess up! The problem is the attorneys that dabble just don’t know what they don’t know. They, in fact, have no clue what they don’t know!

Sure there are in-depth classes they can take, books they can read, and some of them do all that.  A few new estate planning attorneys, like I did in about 1995 or 1996, will go to Wisconsin for a week of intense estate planning training through ALI-ABA which presents an incredible estate planning boot camp at the University of Wisconsin. It rotates each year; one year beginning, the next intermediate and the last advanced.  I went to a beginning year as that was the level of my knowledge back then. Hopefully one of these years I can go back for the advanced course of study because though I could teach most of the classes being offered I also know I will learn something if I do!

Unfortunately, most attorneys that dabble in wills and trusts do not go to many, if any, estate planning classes. They think they have some good forms and they “have the practice guides” if a tough problem presents itself. The problem is they do not know what a tough problem is since they don’t know what they don’t know!

Let me be clear this is NOT about how much money a client has. Certainly larger estates offer complexities but a lot of modest, and even small, estates create much more difficulty. Some small cases really require the knowledge of an advanced estate planning attorney.  Unfortunately many clients don’t know what they don’t know and they assume their case is easy.

The bottom line is hire an attorney with vast experience in estate planning. Do not hire an attorney who dabbles in estate planning just because you know him or he is giving you a good deal. Hire a trained professional!

-John

Reviewing Your Estate Plan

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The percentage of people that actually have a completed estate plan is pretty low.  I don’t know the exact number but it’s well under 50% and could easily be under 20%.  Of those 20-50% of the people who were organized enough to get your estate plan done in the first place should you review it at some point?

Well, the way it often goes is the client signs the estate plan, puts it away and forgets about it. Some people remember to put later acquired  assets into their trust but certainly not the majority of people. However, how many people have a document sitting on a shelf, collecting dust, that is simply not accurate anymore.  It may be inaccurate due to family change, asset change or changes in the law. The key is knowing when to talk to your estate planning attorney and, if in doubt, set an appointment to review things!

Times in life when you should review your estate plan:

- Changes in the law;

- New Marriage;

- Divorce;

- Kids or grandkids are born;

- Assets change drastically (up or down);

- Serious illness;

- Change in family business plans;

- Retirement;

- Change of jobs;

- Financial irresponsibility of a child;

and the list goes on and on.

Some of these can be more major problems than others. Getting married is probably one of the biggest. Let’s say you have a will or trust that leaves 100% of your assets to your children. Let’s say you get re-married to a lovely man. He is warm and sweet, loves your kids, puts a roof over your head and on and on the list goes of great attributes that this man has.  Then you die. Do your kids still get 100% of your will or trust?  Let’s say it was 100% “separate property” that you acquired years before marriage and you never co-mingled the assets with community property.  Still? Do your kids still get 100% of the assets?  What if you died on the honeymoon?  Still?  Do you still think your kids will get 100% of your assets?

The laws in California are very clear that your husband is a “pretermitted spouse.”  Simply put this means your hubbie can make a claim against your estate for his intestate share as if you had no will or trust!  If you have 2 or more kids that means he could make a claim for 33% of YOUR assets and if you only have 1 child he could go after HALF.  Let me say that again… HALF!

On the other hand you could revise your will and trust just before marriage to say you are contemplating marriage and still intend to give your children 100% of the assets.  Then you would do an amendment immediately after marrage stating you are now married but you still wish to give all (or whatever amount you decide) to your children.  By preparing proper, legally binding, amendments to your estate plan you have reviewed your estate plan and avoided the Gov-enator changing your estate plan for you!

This is just an example. I have more! 

I encourage you to contact your estate planning attorney to review your estate plan. If you don’t have an attorney call me!

-John

Probate/Trust Mediation

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Your attorney has recommend you go to mediation to settle the dispute with your brother related to your mom or dad’s death.  Or maybe the probate Judge has ordered you to go to mediation before they will hear your case any more in Court.  Will mediation help you settle your dispute?  In this attorney’s opinion mediation will resolve most situations… but sadly not all. The reason many probate and trust disputes end up in Court is because tensions run very high after a parent’s death. Sibling rivalry issues from 65 years ago may come back to life. Issues related to the caretaking of one’s parents in their elder years may come up after death. In general, people just don’t act completely rationale when they lose a parent… AND then the other issue that clouds many people’s minds… MONEY.  Death and money combine to be a wicked force!

People end up in Court, and/or facing mediation, when they have a dispute which the two sides can not agree on a fair resolution of.  Maybe one person thinks they should get $250,000 of mom’s estate and the other person (usually their sibling) thinks that number is closer to $10,000… or zero! What’s right?  Well, most likely both sides have merit. Most likely the attorneys for each sibling have told them the good and bad to their case. Often a mediator can come in and solve the dilemna. 

Let me first clear up a common misconception that the mediator comes in, says “let’s split it down the middle,” and you walk out 25 minutes later. No.  Mediation often takes all day or, in rare cases, multiple days.  In reality the mediator will generally listen to both sides present their case in a room (often a meeting room at a law firm).  Then the mediator might meet with each side alone to give their opinion of the good and bad of their case.  Yes, the mediator works hard to get a resolution but they can not force you to settle and the mediator does not make a “decision” like a Judge that is binding. A mediator trys to get both sides to see the light, agree and end the lawsuit!

A mediator is usually another attorney who practices in the area of estate and probate law (assuming your mediation is in this area of law of course). In some cases a retired Judge is used. In any event the person is an intelligent and level headed individual with knowledge of probate and trust law.  Mediators are typically paid by the hour and will bill for prep time for the mediation, travel time to the mediation, the mediation itself and any follow up work. They typically charge fees like most lawyers do; maybe $200 – $400 per hour as an estimate.

Let me clearly state a mediation is not Court.  However, you can generally get your case to mediation substantially faster than you can get to Court. Thus many people prefer mediation. Also, mediation tends to be substantially cheaper in attorney fees and I mean $UB-$TAN-TI-A-LLY!

So, let’s back up. Before the mediation your attorney will prepare a mediation brief outlining the case in their view. The other attorney will, likewise, prepare a brief showing their view. Often there is some overlap where the parties agree and then a lot of areas with no overlap.   Focusing on the issues with overlap is first to confirm the common ground. Then the mediator will delve into the dark side and try to resolve the OTHER issues!

The mediator will often put one person, and their attorney in one room, and the other in another room. The mediator will then go back and forth between the two rooms trying to narrow downthe differences and come up with common ground for a settlement.

If both parties agree the mediator might call them into the same room for a meeting to confirm the details. Then the attorneys, and the mediator, will walk over to a computer and start typing out a settlement document. The people do not leave until the settlement is reviewed and SIGNED!

In my experience mediation is a fabulous way to resolve disputes in the trust and estates arena. I encourage you to look into mediation to settle your disputes. If you need an attorney call me. If you need a probate and trust mediator call my associate, AMY RUGGLES, who has the training, patience and knowledge to help you!

The Importance of Specialty

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If you drive a Lexus do you take it to the Ford dealer to get serviced?  Likewise, if you drive a Buick do you take it to Honda dealership for service? My guess is you don’t. My guess is you want someone who specializes in your type of car to fix your car.  What about food?  Do you go to a hamburger place and order fish?  Or maybe you go to a Mexican restaurant and order pancakes?  My guess you go to the type of restaurant you feel like that specializes in a certain type of food.  Doctors? 

Well, you get the point.  How can the same not be true for your lawyer? If you get in a car accident do NOT call me because I do not know the in’s and out’s of personal injury cases. Likewise, if you get charged with a crime please do not call me with your “one call” because I do not know the first thing about criminal defense.  I know all about wills and trusts though!

When you are thinking of hiring an attorney look at their web site, look at the state bar website, and then ask the attorney. I can tell you 100% of my practice is dedicated to wills, trusts, probate and estate planning. ONE-HUNDRED PERCENT. I do not dabble in any other area of law.  When you are deciding who to hire to organize your family’s estate do some research! Check the other attorney’s backgrounds and find out if the dabble in estate planning or have dedicated 100% of their professional life to one area of law.

If their website says they practice a large list of areas that means they are a generalist who is probably not as knowledgeable at estate planning as someone like me who is a Certified Specialist in estate planning, trust and probate law as determined by the State Bar of California Board of Legal Specialization. This means I took a second bar exam… yes, I am that crazy! A one day exam only in these areas of law. Once I passed that I then underwent a deep background check where lawyers and Judges confirmed to the state bar that I know about trusts, probate and estate planning.  For you to hire anybody but a certified specialist is a mistake in my opinion!

Go to my website, go to lawyers.com, go to the state bar website. Every place you look it will say that I do wills, trusts, probate and estate planning. If you find a website that says I do anything else let me know so I can fix it!

If an attorney tells you (or their website shows) that they practice in several areas of law how can they be GREAT at it?  I know attorneys who think estate planning is just filling out some forms. It is NOT that simple. I promise.  The mistakes that can be made can be devastating and can cost your family huge amounts of money, can cause family strife and can usually be avoided!  Use an attorney who focuses their law practice on estate planning if you need a new trust. Do not make a mistake and let a slick talking salesman tell you anything different. You do need to use a specialist!  No, it’s not brain surgery but I know you wouldn’t want an orthopedic surgeon doing your brain surgery so don’t select a family law attorney to do your estate plan.  Select an ESTATE PLANNING ATTORNEY to do your estate plan!

In closing, if you need to know about wills, trusts, probate, estate planning, family limited partnerships, life insurance trusts, qualified personal residence trusts, QPRT’s, QDOTS, heggstad petitions, 850 petitions, probate court petitions, living trusts, loving trusts, revocable trusts, powers of attorneys, health care directives, Qtips, living wills, family LLC’s, family FLP’s, estate taxes, gift taxes, annual exemptions, generation skipping taxes, property taxes, capital gains taxes, and the list goes on then YES please call me!

-John

MCLE

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Every California lawyer knows what these letters stand for… Mandatory Continuing Legal Education.  Some attorneys dread it.  Yes, sitting in some hotel ballroom listening to non-professional speakers drone on and on can be tiring. As the years have gone on I have learned to really appreciate MCLE.

I remember sitting in a session, as a new attorney, down in Coronado.  Could practically see the big blue bridge from the conference room windows!  I was with my mom who also is an attorney. Want to hear something even scarier… my dad was an attorney too!  I’ll tell you about that some other day. Anyway, my mom and I were at at the Southern California Tax Institute which generally has high level speakers. However, this was about 1995 and I was a newbie attorney. Oh boy, some of those presentations were over my head!  However, I learned then that you get what you can out of each presentation. Sometimes I would walk away with only a little and sometimes a lot.

Fast forward 15 years and I have taught MCLE courses on probate.  I am a certified specialist in this area of law and now some young buck gets to be the one who doesn’t understand it all!  In addition to teaching I go to a large number of MCLE courses a year.

Well anyway, today I am going to a couple of MCLE presentations. I have a three hour session on recent developments in estate planning and probate law which is one that most specialists go to every year.  The other three hour class is called “Practical Problems in Trust Administration.”  Of the two I am more excited about the second but they both should be good.

By the way the State Bar of California does not let you get cheapie “hours” either.  The actual presentation time is three hours AND fifteen minutes with a 15 minute break. Hours equal hours with the State Bar!

The recent developments class can drone on as the lawyers presenting it typically tell you about each new case, and other law, which might effect you this year.  They tend to flip through a course book and almost read, word for word, out of the book.  The laws tend to be pretty obscure although the new no contest laws will probably be discussed which is good as they are confusing to all!

The second presentation sounds very interesting. The problem with trust administration is that people (clients and also attorneys who do not practice regularly in this area of law) think it’s easy and often, mistakenly, think they don’t need an attorney.  Though a properly drafted and funded trust should be much less costly than a full probate to administer there still can be costs involved.  An experienced probate and trust lawyer knows what needs to be done to make a trust administration run smoothly. Anyway, I am excited about this one. Oh my, it sounds funny to say but really I am excited about it.

So how many hours of MCLE does an attorney do a year?   The current requirements, in California, are 25 hours spread over 3 years.  I have always exceeded that number. On top of that as a certified specialist I have a minimum of SIXTY hours, every five years, in MCLE courses specifically approved by the state bar for specialization credit in estate planning, trust and probate law.  Many courses, even if on topic, do not qualify. Only the high level programs count!

So, every lawyer does about 12 hours a year.  However, as a certified specialist I basically double that number each year!  Plus, as one who takes pride in being the best I can be I exceed the number I am required to do! Your lawyer should too!

In my opinion, any lawyer that says that don’t need MCLE because they already know everything is flat out lying to you.  Even when I teach an MCLE course I learn stuff… in fact, that’s when I learn the most because no presentor wants to be caught flat footed with a room full of attorneys!  Sincerely, I pick up something from just about every MCLE class I go to. Sometimes I am reminded of something, sometimes I learn a new practice tip, and sometimes I here other attorney’s analysis of a new law. In total I think MCLE is great and am glad that we are required to do it!

Ok, ok I better get back to work as I only have a couple hours this morning in the office before heading off to class.  The bottom line is you should work with an attorney that exceeds their MCLE requirements rather than one that just meets it!

Have a great day!

-John

New Year's Resolution – GET TRUST DONE

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Ok, maybe it’s not exactly a “resolution” but I think it’s akin to it.  Many people go into the new year with a list of self improvement goals, including the thought to get their estate plan done.  The list might be something like this:

- Go the gym at least 5 days a week;

- Don’t eat sweets;

- Cut down to 2 cups of coffee in the morning;

- Get estate plan done this year;

etc….

I already go to the gym, or run, 7 days a week so Iam not vowing any change there!  I don’t eat a lot of sweets and I don’t drink coffee. However, I am not changing my iced tea consumption!  I have a great estate plan set up! Oh wait, this blog isn’t about me….

I have found that a lot of people enter each new year with the idea that, “this year we will finally get our trust done.”  Often they admit they have been talking about getting their estate plan done since their child was born. Those people generally have college age, or OLDER, “kids.”  However, whenever you get your estate plan done doesn’t matter… just GET IT DONE!

I occasionally meet with someone who tells me they will get back to me “soon” to finish their plan.  I tell them, “just call me at least two weeks before it’s needed.”  Some laugh and some don’t… I suspect the ones that don’t laugh are the ones that actually GET IT… that is, the day your estate plan is actually NEEDED may be a day too late for you to sign your documents!

A simple trust may avoid probate.  That avoidance of probate, in simple math, will probably saved your loved ones about 4% on average. That is, 4% of your GROSS estate.  That can add up quick!  Probate also takes 7 months MINIMUM to complete and a lot of people don’t want to make their loved ones go through that.

A more complex trust may avoid estate taxes.  Did you know that, under current law, for all deaths happening after January 1, 2011 you can only give away $1,000,000 tax free? Did you know your assets above that could be subject to an estate tax above fifty percent?  FIFTY PERCENT!  That is, fifty cents of EVERY SINGLE HARD EARNED DOLLAR could go to the tax man!  Yes, it’s true!

Beyond the dollars and cents are the personal issues. You know what I am talking about… huge fights over mom’s crystal, fights over dad’s antique gun, etc… avoid all that drama by getting your estate plan in writing!

I encourage you to make a new year’s resolution to get your estate plan done this year. I encourage you to put a date on that resolution. For example, “I will make an appointment with a qualified estate planning attorney by January 15, 2010.”

As discussed previously I can get your plan done in two-three weeks. The first step is to contact an attorney and that’s up to YOU.  If you don’t know who to call I hope you will call me. If you find my blog amusing but you don’t want to hire me then contact another attorney who is a certified specialist in estate planning, trust and probate law.  You can find this list at the California State Bar website…. 

Happy New Year to you and yours… and speaking of YOURS, get your estate plan done as it’s a big gift to your family and loved ones!

-John

Economics of Hiring an Out of Town Attorney

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Did you know your attorney can appear in most any courtoom in California while sitting at his or her desk? Just about every Court participates in CourtCall (a service connecting attorneys to courtrooms for a nominal fee) or allows attorneys to dial in to the Courthouse directly. Why does this matter to you? Generally speaking a probate court “appearance” is needed in most cases at some point.  Not all of course but in most. If your attorney’s office is in, or near, the city of the courthouse the Judge expects your attorney to show up in person. However, an out of town attorney is expected to appear by CourtCall.

With CourtCall the Judge and everybody else in the courtroom hears the phone call particpants over the speakers. This can make for an occasional embarrasement when a court call attorney forgets they are on speaker. Reminds me of that scene in one of the Leslie Nielsen Police Squad movies. Anyway, let’s go through the simple economics of this to YOU, the average client.

Let’s say Attorney 1 has his offices in Woodland Hills and your case is at the downtown Los Angeles Courthouse. Let’s say that attorney charges $300 per hour. Attorney 2 has his offices in Sacramento (and Roseville!) and charges $250 per hour.  For arguments sake assume both attorneys have been practicing law the same number of years and have the same exact credentials.  Let’s say your case has a 9:00 hearing. What time would attorney 1 need to leave his home or office in the valley to get to the 9:00 court hearing in downtown LA?  He has to drive, park his car, walk to the courthouse, up the elevator, etc….  He could leave the valley at 8:00 but no sure thing with LA traffic.  He could leave at 8:15 if he or she likes to cut it really close.  Attorney 2 can call up the courtroom at 8:58.  Hmmmmmm, what’s better economically for you the client?  Oh ya, and attorney 1 still has to drive back to their office after Court. On straight economics obviously it makes sense to hire an attorney, in another city, who is a certified specialist in estate planning, trust and proabte law.  They can appear by CourtCall, they charge a lower hourly rate since they are in a smaller city, and you the client come out way ahead!

Is CourtCall right for all cases?  No, of course not. If your case is likely to result in lengthy litigation then you should hire a local attorney or hire an out of town attorney with local contacts in the city of your case. In a litigated case you need local counsel in the courtroom arguing your case. However, few cases end up being litigated. In most probate cases it’s a matter of filing the right documents at the right times.  Thus an out of town attorney is right in most cases; particiularly for those cases in the big cities where traffic is horendous.

The point of this is to think about who you are hiring first and foremost. Do not worry as much about the geographics but rather think about the attorney, his credentials, his experience, his efficiency, his specialty, etc….

When I started writing this I did not intend for it be a sales pitch but it is now so let me tell you I am a certified specialist in estate planning, trust and probate law. I have been so certified by the State Bar of California board of legal specialization. I also have been rated “AV” by Martindale Hubbell which is their highest honor. I also have a great phone system so appearing by CourtCall is a breeze for me!

I also am highly efficient with email, phone, fax, FedEx and the US Mail. I have clients around the world. While there are some instances where a face to face meeting is nice there are plenty of others where the mediums of today work well which allow for more efficient representation. Evaluate all of your options before hiring your next attorney!

Oh wait, it’s 8:50 and I need to run to the rest room before I “appear” in Court in a far away county at 9:00!

New Year's Resolutions

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Most of us make them, right?  For the new year I will go to the gym every day, not miss a single of my kid’s soccer practices and…, for many people, FINISH MY ESTATE PLAN!  It is amazing how many people tell me that they talk about doing their estate plan every year around New Year’s Resolution time… but never finish it.  My approach to New Year’s Resolutions has always been to have some resolutions but I try to start enacting them as soon as I think of it. Why wait for January 1st?  Why not start today!?

For example, two weeks ago I realized I had become sloppy in my return of phone calls and emails.  That is, many attorneys belive it’s acceptable to return a client’s phone call (or email) within 24 hours of receipt.  I have never felt that is acceptable. However, over the last couple of years the number of calls and emails has piled up and, at times, I have taken up to 24 hours to reply. That is not acceptable. I want to be an exceptional attorney and not merely an average one. 

With the above in mind I have made a New Year’s Resolution to return all calls and emails within 3 hours of receipt.  I am not waiting until January 1, 2010 to start this resolution… I am starting now!  Feel free to email me to see if I am able to meet my goal!

For you, the person looking to finish (or update) your estate plan let’s get it done NOW!  You say it can’t be done, you are too busy, it takes too much time, you don’t know all of the answers… [insert your own excuse here].  I don’t like to tell clients they are wrong but you are wrong. We can get your estate plan done this year! Contact me at once so we can make it happen. 

If you contact me by December 15th we can make this happen THIS YEAR. How would it work? We will set a meeting, in office (or on the phone) to discuss your situation.  We would meet around December 16th or 17th for that conversation.  That would be about a 45-60 minute meeting.  I would then prepare a rough draft of your new estate plan the following week and mail (or email) it to you so that you have it in hand by December 24th.  You then have a long weekend to review the documents. In reality you will need about one hour to sit down and review everything. Two hours if you are detail oriented.  You would contact be by Tuesday December 29th with changes and questions.  We could go over those on the phone.  I would make the changes and we would sign final documents on December 30th or 31st.  

That’s right, you can put an estate plan in place now and thus check off a New Year’s Resolution NOW before the new year is even here.

Your new estate plan may help you minimize or avoid taxes after death which, at 45%, can be a huge financial burden to your loved ones.  Your new estate plan will most certainly avoid probate, which at about 4%, can be very costly and is always very time consuming!  Even an efficient probate attorney, like myself, can not complete a probate in less than 7 months. The Court time-lines make it impossible to be shorter than 7 months.   An inefficient probate attorney can take one to two years to finish a probate. .. or longer!  That sounds like something to avoid so let’s get your estate plan done!  Also, if you have minor children do you want to make sure they live with your chosen guardian and that your money, including life insurance, is held in trust for your kids benefit? I KNOW you do!

Let’s meet now to get your plan done before you watch the ball drop on New Year’s Eve!  Call me!  Make sure to mention you want the New Year’s Resolution special so I know what your timeline is!   -John

P.S. Happy holidays and I hope your 2010 is happy and healthy!