These are questions I hear from clients referred to me by family law attorneys. There are things that you can do before you file for divorce, and there are (fewer) things you can do during the divorce.

Filing for dissolution in California places on you automatic temporary restraining orders (ATROs). These restrict changes you can make to your estate plan during the divorce proceedings – they are designed to maintain the status quo. However, the status quo can be devastating to you and your loved ones. While death or incapacity during divorce are not common, the consequences are so severe that you can’t overlook the simple estate planning acts you can take to safeguard your family.

Before filing for divorce (or before receiving papers, if you feel your spouse is about to file), consider one or more of the following actions:

• Creating, modifying, or revoking a will;
• Revoking an existing revocable trust;
• Creating and funding a new revocable trust;
• Severing joint tenancies;
• Changing beneficiary designations; and
• Revoking existing powers of attorney and executing new powers of attorney.

All of these actions should be considered before the petition is filed, because at that point in time they may be done without giving notice to the other spouse or RDP or to the court and do not require the consent of the other spouse or RDP or the court.

You should consult with a trusted estate planning advisor so that you can make sure your acts are effective. Consider an advisor other than the one who drafted your original documents.

Justice John Roberts wrote that if the mandate is read as a command – “you must buy health insurance” – that it would be unconstitutional as beyond the powers of the federal commerce clause.

Here is the text of 26 USC Section 5000A:

“(a) Requirement to maintain minimum essential coverage

You bet.

Every parent should have a will that designates who would be guardian of their child(ren) if something were to happen. Attorney Daniel K. Printz will be conducting this workshop that teaches you the ins and outs of wills versus living trusts. By the end of the evening, you will have completed your own holographic will with guardianship designations.

Saturday June 2, 2012
9:00 am – 11:00 am
Location: Scripps Coastal Medical Group, Carlsbad
Street: 2176 Salk Avenue
City State Zip: Carlsbad, CA 92008
Phone: 858-626-6944

Cost: This event is free for Parent Connection members, $10 for nonmembers.

Register at http://www.sandiegoparent.com/TPC/event/signup.html 

Registration must be done through the website. Contact Mr. Printz at (858) 740-4370.

Answer: Neither, a will and a trust govern different property.

If a person has a living trust, they should have a will as well. The trust document covers only things that are put into the trust. The will covers anything that is not in trust, and not in a designated-beneficiary account like life insurance or retirement accounts. Normally a will created alongside a trust is a “pour-over” will, and it leaves everything to the trust.

For example, let’s say I own a house in my own name and I have a will leaving everything to my son. The house is controlled by my will. Then I make a trust leaving everything I own to the Humane Society. The house is still controlled by my will because it’s not in the trust. Then I create a Deed transferring the house from myself, Daniel Printz, to myself as trustee: “Daniel Printz, as Trustee of the Daniel Printz Trust.” NOW the house is controlled by the trust and will go to the Humane Society.

Feel free to contact me directly at (858) 740-4370 if you have questions about these documents and how they interact.

Families with infants, young children & parents with a baby on the way will find something special at The Family Swap Meet.  I usually have a booth myself, stop by and say ‘hi’ where you see the Daniel K. Printz, Esq. banner.

Sunday, June 24, 2012
9:00am – 1:00pm

Canyon Crest Academy in Carmel Valley
5951 E Village Center Loop Rd
San Diego, CA 92130-2499

Admission is $2 per person (under 12 years old free). No pre-registration is required for attendees. For info, call 858-626-6944.

A Living Estate is what we own while we are alive. All of those things that go into  your financial junk drawer: your cash, real property, vehicles, jewelery, 401K accounts, etc., are part of your living estate. Some folks don’t think their living estate amounts to much, or feel that with student loans, underwater real estate, they might actually have a negative net worth.

New parents unfortunately don’t realize their living estate could be much more than they think. One father-to-be told me: “I don’t have an estate, why do I need a trust?”

The Father-To-Be.

“Daniel, I am a father-to-be, but I don’t have much money. Do I need a trust?” You do have a lot of money. Or, to be more accurate, you can make sure that if you are taken out of your child’s life they have more than enough money to get by. You can fund your Living Estate with basic term life insurance. Very inexpensive, especially for young, healthy parents. Contact a life insurance agent, or ask me for a referral, and just find out how much a simple 15-year term life insurance policy would be. Then, if you die and your child is orphaned, there will be a pool of assets your child’s trustee can pull from for her education, medical care, etc. This will be your child’s Trust Fund.

Trust Fund?

You bet. Trust funds are just for the Mitt Romneys of the world. If you have a term life insurance policy, or assets of your own, your money will go into a trust fund for your child until he or she reaches the ages you designate. While the trust fund is active, the trustee can pull from it to pay for her education, as we mentioned above, and other purposes. Then, the principal will go to your child when you want it to. It’s popular now to have the trust fund distribute out in three stages: for example, 33% at age 21, 33% at age 25, and the balance at age 30.

But don’t think you can, or should set this up yourself. Find a San Diego estate planning attorney to help you out.

San Diego Estate Planning Attorney?

Absolutely. A San Diego estate planning attorney has the expertise to create a trust into which you will transfer your living estate. Everything remains your money, managed and accessable only by you, but on your death the trust will create a trust fund for your beneficiary (your child).

Why Get a Will?

A will is most important when one has children between the ages of 0 and 18, because a will is where you name a guardian for your children. But everyone needs a will because if you don’t have one, all of your assets and personal property will be divided up according to the laws of the state you are living in when you die, which for some people means that your young children will end up with more assets than your spouse!

Besides, everyone has something, even if it’s an old guitar or a sentimental necklace, that you’d prefer to give to someone specific.

Can I Make My Own Will?

You can, but you shouldn’t. For some people, online or over-the-counter software works alright. Whether you should use a lawyer depends on your personal circumstances and comfort level. But if you’re at all unsure, it’s probably worth paying for a professional. Actually, the introduction of do-it-yourself software has forced lawyers to dramatically lower their prices for these entry-level estate planning documents, so it’s well worth your investment to hire an attorney.

If you are naming a guardian for children hiring a lawyer is a must –software won’t talk to you about the important questions like a lawyer will. For example, let’s say you name your sister Sarah and her husband Bobby as guardians of your child. What if Sarah and Bobby get divorced – do you want the child to stay with Sarah, or Bobby? Okay, Sarah. Now say Sarah has passed away or become incapacitated. Do you want your child to stay with Bobby, who isn’t any relation to you at all, or move to another family member? This is not something you want to get wrong.

Others who should seek a professional help: Small-business owners, parents of children with special needs or couples where one partner is facing an illness like Alzheimer’s or who may have early signs of dementia.

Or maybe you’re remarried but still want to leave most of your assets to your children. This may also call for a lawyer’s assistance, since “disinheriting” a spouse can get tricky. You may want to invest in a prenuptial or post-nuptial agreement.

Do I Need More Than a Will?

Everyone should have documents in place that allow others to make decisions for you in case you become incapacitated. These documents are very inexpensive to have a lawyer prepare, and save your loved ones much heartache later on.

For medical matters, you need what we in California call an advance health care directive. A durable financial power of attorney gives someone legal authorization to handle your financial affairs when you can’t do so on your own.

Many people, including parents of young children and anyone who owns a home, should consider a living trust. Talk with a local attorney about the pros and cons of trusts and see if they work for you.

Where Should I Keep My Will?

I recommend my clients keep their important documents in a fireproof safe in their home or in a safe deposit box. A copy of your advance health care directive and power of attorney should be sent to your designated agent for those decisions so that they aren’t hunting for documents during a crisis.

Need more help or advice? Have more questions? Call San Diego attorney Daniel Printz anytime to schedule a free consultation: (858) 720-8250.

Here is a question recently posed by someone who was promised the world but left with nothing, along with my answer:

Question:

If I share a home with my partner for over 20 years, and helped pay for upkeep and expenses, am I entitled to the property when he dies? We live in California and never married, but he told me, friends, and family that he was leaving me the house. We moved in together when it was new over 20 years ago. He never changed the will and it went to his two kids, but I’m still living in it, paying the taxes, the HOI, all repairs and expenses.

Answer:

You might be able to come to an agreement with the kids, however you are not *entitled* to the property if you were not either (1) on title, (2) designated to receive it in the will, (2) married to your partner, or (3) in a registered domestic partnership.  The best you can argue for is a refund of your contribution to the property, but it would be a hard sell – contact a local probate attorney with the facts and ask for a consultation.

We will establish either a QTIP or Credit Shelter Trust, preferably with a 3rd party trustee not subject to H’s influence, into which the deceased settlor’s property will flow on his or her death. You can give a power of appointment over the survivor’s trust (the “A” trust) while still protecting W’s child in case W is the first to pass. It is not standard to give H the power to reallocate assets between the survivor’s and the bypass trust after W passes – this would make the separation of trusts pointless and would certainly forfeit W’s estate tax exemption.

How long does this planning process take? Most likely about 2-3 weeks, depending on how long the spouse’s take to make decisions. Call the Law Office of Daniel K. Printz at (858) 740-4370 for more information.

Parent Connection Family Swap Meet – this is a can’t miss regarding great deals on children’s gear…at amazing prices! Visit all 350 vendors in one location, almost all of them parents selling their gently used children’s clothing, games and toys.

Families with infants, young children & parents with a baby on the way will find something special at The Family Swap Meet.

Stop by our booth (G-209/210) and receive special discount offers on estate planning services!

Sunday, March 25
9:00am - 1:00pm

Canyon Crest Academy in Carmel Valley 

5951 E Village Center Loop Rd
San Diego, CA 92130-2499