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8 Ways to Help Avoid a Will Contest

WillsNo Comments

Boxing e1321902650338 8 Ways to Help Avoid a Will ContestWould The Waltons succeed as a TV show today?  Probably not.  Most popular shows today are about families that fight, and it’s hard to tell if that is a reflection of our society now or vice versa.

So it’s understandable that people who take the time and effort to put together a will don’t want to see it voided by a contentious family squabble.  Here are 8 ways to help avoid a will contest:

  1. If you think your will might be contested, consider using a trust instead to pass assets to heirs.
  2. Be sure to explain the reasons for why you structured your will the way you did so your intent is clear.
  3. Add a no-contest clause to your will to deter heirs from filing suit.
  4. If you are making specific bequests to charity, explain why – if you have a history of supporting a particular charity named in the will, say so to demonstrate your relationship and intent.
  5. Don’t make changes to your will when you are in poor health.
  6. Try to use the same attorney who drafted your will to make any changes.
  7. Be sure your attorney documents the execution of the will.  You may want the process videotaped.
  8. Follow all legal requirements in California to create and execute a will.  You must sign your will in the presence of two witnesses, and they must also sign in your presence.

If you need help creating or amending your will, contact our Newport Beach law firm.

How to Properly Execute a California Will

WillsNo Comments

will4 150x150 How to Properly Execute a California WillA California will is a crucial document that spells out your wishes for the disposition of your assets – and once you are gone, family members cannot go back and “fix” a will that has been executed improperly.

This is why it is critical to have a California will prepared by a qualified California estate planning attorney, who can ensure that all the proper formalities have been followed.

Before you have a California will prepared, consider:

  • The assets to be included in the will, and other assets you may wish to place in trust.
  • The names of your primary and secondary beneficiaries
  • Any family members or other heirs you do not want to include in your will.
  • If the potential exists for your will to be contested.
  • The people that you want to inherit personal assets – art collections, jewelry, etc.
  • The name of the person or persons you want to serve as executor of your estate.
  • The existence of any other wills that need to be revoked.
  • Your own mental competence to sign the will.
  • The identification of those who will witness the signing of your will (California law requires at least two people to witness a will).

Get started by contacting our Orange County asset protection estate planning law firm as soon as possible.

Follow This Simple Checklist to Create a Will

WillsNo Comments

Check off box 150x150 Follow This Simple Checklist to Create a WillCreating a will does not need to be a complex process, but it does take some forethought and preparation prior to meeting with your estate planning attorney to finalize it.

Here is a checklist for getting ready to prepare your will:

1.  List all the property you want included in your will.  If you have significant assets, these may need to be protected by a trust, which you can discuss with your estate planning attorney.

2.  Make a list of your beneficiaries.  Decide who you want to inherit the property you have already listed.  Be sure to identify secondary beneficiaries in case the primary ones die before you do.

3.  Select an executor.  Every will must include the name of the person you designate – an executor — to carry out the terms of your will.  It should be someone who is willing to serve, and you should notify them that you have named them as the executor of your will.

4.  Determine a guardian for any minor children.  If you have children 17 or younger, and there is not another parent to raise them, you will need to name a guardian in your will.

5.  Determine a trustee for property you leave your children.  If you are leaving significant property to your children and they are young, you should name a trustee or property guardian to manage it for them.

Once you have finished all the items on this checklist, you are well prepared to execute a will with the assistance of a trusted estate planning attorney.

Contact us today for individualized planning strategies to meet your unique needs. 

 

Can We Talk? Most Families Say “No” About Estate Planning

Estate Planning, WillsNo Comments

caregiver e1349988927811 Can We Talk?  Most Families Say “No” About Estate PlanningA new Fidelity Investments survey has found that a majority of American families have a hard time talking about wills, elder care and retirement planning.  In fact, a majority surveyed said they feel much more comfortable discussing estate planning issues with a third party – like an estate planning attorney – than other family members.

Some other interesting findings from the report:

97% had conflicting opinions between the generations on the topic of whether children will care for parents if they fall ill;

A majority of children underestimated their parents’ wealth by about $100,000;

30% of parents do not want their children to rely on an inheritance;

40% of children said it was none of their business to ask about the contents of a will;

97% of parents said they do not need help in retirement, but 24% of their children said they do.

Discussing these issues is often taboo in families, but there are real financial and emotional consequences when these conversations don’t take place.

Do your family a favor and take some time out during the upcoming holiday season to discuss these important matters with the people who matter most to you.

Get started by contacting  our Orange County asset protection estate planning law firm as soon as possible.

Why You Need a Will

Estate Planning, WillsNo Comments

last will1 150x150 Why You Need a WillSome of the most unusual stipulations in wills have to do with pets inheriting an entire estate, how someone’s body will be handled after death (cremation or burial would both be too ordinary for some), and, in some sad cases, children or grandchildren being “cut out of the will.”

Orange County estate planning attorneys have seen our fair share, but we’re not the only ones. Here are some of the strangest bequests left via a last will and testament:

Harry Houdini – requested that a séance be held every year on the anniversary of this death so he could communicate with his wife from the great beyond.

Star Trek creator Gene Roddenberry – asked for his ashes to be scattered in space.

Napoleon Bonaparte – left instructions in his will for his head to be shaved after he died and for his hair to be distributed among his friends.

Marvel Comics editor Mark Gruenwald – asked for his ashes to be mixed with comic book ink and used to print comic books.

Eccentric Vermont Millionaire John Bowman – Bowman died in 1891, having outlived his wife and two daughters.  As a believer in reincarnation, Bowman made provisions in his will for his mansion to be maintained and for dinner to be served every evening in case the family came back.  The money ran out in 1950, and the family never came back.

Contact us today and let our Newport Beach law firm help you with all your financial planning needs.

The King of Biers?

Estate Planning, WillsNo Comments

Budweiser Casket e1348086902868 The King of Biers?Leon Wesley asked his sister, who operates the local funeral home in their hometown of Maringouin, LA, to bury him in a casket emblazoned with a Budweiser logo to commemorate his love of the popular beer and of having a good time.  Wesley passed away last week of prostate cancer, and was buried as requested with a Bud in his hand.

People have all sorts of what some might consider to be odd requests when it comes to making our final plans.  Those of us who don’t have relatives in the funeral business need to take a more formalized approach to making last wishes known, which can be easily done via a letter of final instruction.

While not legally binding, a letter of final instruction provides family members or other designated parties with guidance on items that may not be included in your legal estate planning documents.  The letter can include:

  • Where to find your estate planning documents
  • Contact information for relevant advisers
  • Who to contact upon your death
  • Where to locate safe deposit boxes, list of safety box contents, where the keys are located and who you authorize to open your safety deposit box
  • Life insurance policies, location and beneficiaries
  • Bank accounts and titling information
  • Trust and investment account information
  • Any debts or other liabilities
  • Credit card accounts
  • Important documents like deeds and titles, and where they are held
  • Where house keys are kept
  • Pension benefit details and contact information
  • Your instructions for funeral or memorial services

Be sure you store your letter of final instruction with your estate planning documents and provide a copy to your estate planning attorney.

Get started by contacting  our Orange County asset protection estate planning law firm as soon as possible.

The Consequences of Unequal Distributions in a California Will

Estate Planning, WillsNo Comments

will3 The Consequences of Unequal Distributions in a California WillThere are potential consequences that extend beyond hurt feelings when parents leave one child more than others in a will, including potentially leaving your estate plan vulnerable to legal challenge.

Of course, there can be a number of very good reasons for unequal distributions.  One child may be much more successful financially than others; one child may have chosen a philanthropic career that will never pay much monetarily but still makes a great contribution to the world.  Parents may be estranged from one child; one child more than the others may have assumed the burden of care for aging parents.

Whatever the reason for an uneven distribution, there are ways to do it so you can protect your last will and testament from being challenged in a court of law:

Explain the disparity – the best path is to explain to your children exactly what your will includes while you are still alive, but many parents find this too difficult.  So explain it in your will.

Prove your capacity – Write a letter or make a video to accompany your will that explains your decision-making process.  If you make a video, be sure to consult with your Orange County estate planning attorney beforehand.

Make gifts now – Making gifts while you are still alive will help the children who need it most and you can then make even distributions in your will for after you are gone.

Keep your will updated – drafting a series of new wills over time with slightly different language but the same basic provisions shows that you have reviewed your will and that your intentions have remained the same over time.

No-contest clauses – you can add no-contest clauses in your will that will in effect disinherit those who contest your will in court.

Help is available to you by contacting your Southern California financial planning experts today.

Estate Tax Avoidance Is Not Always a Girl’s Best Friend

Asset Protection, Estate Planning, Probate, WillsNo Comments

marilyn monroe 150x150 Estate Tax Avoidance Is Not Always a Girl’s Best FriendThe public’s fascination with Marilyn Monroe continued last month when the 50th anniversary of her death on August 5 was marked with many tributes.  Three weeks later, the Ninth Circuit Court of Appeals handed down its decision in a case regarding whether Monroe’s publicity rights passed to her estate.

The case – Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC – is an estate planning lesson in long-term benefits vs. short-term gain.  Monroe’s executor, now-deceased New York attorney Aaron Frosch, probated her will in New York and represented her domicile in other probate proceedings over the years as New York, mainly to avoid California estate taxes.

The Monroe will’s residual clause distributed the bulk of her estate to her acting coach Lee Strasberg.  He died in 1982, leaving his share of Monroe’s estate to his wife, Anna Strasberg.  After Monroe estate executor Frosch died in 1989, a Surrogate’s Court appointed Anna Strasberg executor of the Monroe estate.  In 2001, the Surrogate’s Court settled the estate and authorized it to transfer all remaining assets to Marilyn Monroe LLC, a newly formed Delaware LLC managed by Anna Strasberg.

In 2005, Marilyn Monroe LLC sued Milton H. Greene Archives in Indiana for violation of Monroe LLC’s rights by using Monroe’s image and likeness for unauthorized commercial purposes.  Greene countersued, arguing that Monroe LLC does not own Monroe’s right of publicity.

In 2007, the district court granted summary judgment in favor of Milton Greene, concluding that, at the time of Monroe’s death in 1962, the states of New York, California and Indiana did not recognize “a descendible, posthumous right of publicity.” Acknowledging that “California created a descendible, posthumous right of publicity in 1984, with the passage of its postmortem right of publicity statute,” the district court held that as of 1962, applying either New York or California law, no right of publicity could have passed through Monroe’s will, reasoning that Monroe “had no testamentary capacity to devise, through the residual clause of her will, statutory rights of publicity that were not created until decades after her death.”

This decision led to the passage in California of SB 771, when amended the Civil Code to provide that the California statutory right of publicity is deemed to have existed at the time of death of any deceased personality who died before January 1, 1985; is a property right, freely transferable and descendible; and, in the absence of an express testamentary transfer, could pass through the residual clause in the will of the deceased personality.

Based on the new California law, Monroe LLC sought reconsideration of the district court’s ruling in favor of Milton Greene in 2007, now saying that Monroe was domiciled in California and that California laws should prevail.  The district court again granted summary judgment to Milton Greene, reasoning that principles of judicial estoppel precluded Monroe LLC from advocating that Monroe was domiciled in California when she died.

As the appeals court noted in its decision to affirm the district court’s ruling:

This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of them pretty.” There is nothing pretty in Monroe LLC’s about-face on the issue of domicile.

By claiming New York as her domicile to avoid California estate taxes, Monroe’s estate lost out on significantly greater earnings via publicity rights.  The lesson?  Having your estate plan revolve solely around the avoidance of estate taxes is not always the prudent path.

Contact us today and let our Newport Beach law firm help you with all your financial planning needs.

 

Will Stipulates Gay Father Must Marry Woman For His Son to Receive Inheritance

Estate Planning, Trust Litigation, WillsNo Comments

last will 150x150 Will Stipulates Gay Father Must Marry Woman For His Son to Receive InheritanceFrank Mandelbaum, who died in 2007 at the age of 73, amassed a fortune as the founder of Intellicheck, an ID verification firm.  In his will, he left a $180,000 trust for each of his grandchildren, including any that would be born after his death.

Frank’s son, Robert Mandelbaum, is a Manhattan criminal court judge who also happens to be gay.  Robert and his partner had a son via a surrogate, and married shortly after the birth of the boy in 2011.

However, for Robert’s son to be able to inherit according to Frank’s will, Robert must have been married to the female surrogate within six months of his son’s birth.  The will specifically excludes any child that may have been adopted by Robert as well as a biological child if he did not follow the instructions to marry the biological mother.

Robert is challenging his father’s will on the basis that it violates New York’s marriage equality law.  His attorney has said it was clear that Frank tried to induce Robert to marry a woman against his wishes, which “is therefore contrary to public policy.”

People who try to exert control over loved ones from the grave in ways that are contrary to public policy will usually find their efforts invalidated by a court.  If the provisions of an inheritance are illegal, ambiguous or impossible to satisfy, these will likely not survive a challenge either.

In many cases, an incentive trust can be used to define when financial gifts would be distributed from a trust, and under what circumstances.  Most parents choose to give a distribution upon graduation from college, or to help an entrepreneurial child start a new business – events that are unlikely to be found contrary to public policy.

Contact us today and let our Newport Beach law firm help you with all your financial planning needs.

The Will Battle That Won’t Die

Estate Planning, Wills3 Comments

michael jackson e1344457711972 The Will Battle That Won’t DieLast week, a Superior Court judge in Los Angeles temporarily named T.J. Jackson as co-guardian with his grandmother Katherine Jackson of her son Michael Jackson’s three minor children, Prince, Paris and Blanket.

Katherine, who was removed earlier as guardian after she left L.A. for Arizona, will be in charge of the children’s financial affairs while T.J. will oversee their daily personal needs.   Michael’s sister Janet and two other Jackson siblings – Rebbie and Randy – are challenging the validity of Michael’s 2002 will, which was allegedly signed by Michael on July 7, 2002 in Los Angeles.

However, Janet says that there is “irrefutable evidence” that Michael was in New York on that day and could not have signed the will.  She says the executors have not explained this discrepancy.

Wills must be signed in person in front of witnesses, or they are invalid – and in person means in the same room and in the actual physical presence of witnesses.  The executors of Jackson’s estate include two of the three people who signed as witnesses – John McClain and Barry Siegel.

Siegel later declined to act as an executor, but McClain currently serves with John Branca as co-executors.  Janet Jackson alleges that the executors are the primary people who stand to gain financially from the July 2002 will.

This latest development illustrates perfectly why executors and witnesses to a will should be different, especially if a will could conceivably be contested.  Those with a financial interest in an estate should not witness a will.

Contact us today for individualized planning strategies to meet your unique needs.

 

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