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.

If you want to open your young person’s creative juices to the written word, or encourage their writing talents, consider attending “Igloos in Oceanside,” a March 26, 2011 (rescheduled from February 26th) event hosted by Kid Expressions.  Time and Place: 9:00 a.m. at 802 South Tremont Street, Oceanside, California.

At Igloos in Oceanside, rigid styro-foam triangles each about three feet tall will be used to create a geodesic half-dome  about twelve feet in diameter, and big enough to cozy up inside away from the California rainstorms! Your child can claim a triangle of his own, and draw, paint, scribble, or write anything he wants onto it.  The event is free, but a donation is requested, as is online registration.

The event will be catered by The Flying Pig, and is meant to bring attention to Kid Expressions’ program of children’s writing workshops.  Young writers will be divided into three classes by experience: Beginning Writers, Advanced Writers, and Authors, each mentored by adults.  90-minute seminars will be presented once a week for eight weeks, covering topics such as: “Character Development” and “Writing From Experience.”

I learned about this event from noted designer and children’s book illustrator Teri Rider. For myself, I just hope they’ll still be offering seminars when my little “Samuel Clemens” has learned to write his ABC’s.  For the rest of you, good luck!

“My daughter has her biological father’s last name, but he isn’t on her birth certificate. He isn’t involved in her life. My husband wants to adopt her but we’re not sure what all we have to do in order to get it done. Also, my husband is in the military and we are currently living in California. My daughter, however, was born in Texas, which is also where her biological father is. Do we have to go by Texas laws? or California?”

And my answer:

“Unless your daughter is the subject of an ongoing family law case in Texas, jurisdiction in California is appropriate.  You will work with the Superior Court of the County in which you are living.  You will complete California mandatory forms Adopt-200 (to submit at hearing) Adopt-210 (to sign in court) and Adopt-215 (for the judge to sign).

You’ll take the forms to court and pay a filing fee. Soon thereafter, a social worker will meet with you and then write a report. When you receive a copy of the report, you’ll ask for a hearing date. Assuming all is well, you will bring the child with you to court on the hearing date, along with all of the forms, assorted friends/family, and at least one camera, and the three of you will leave court with a new familial relationship (and often with a new Teddy Bear for your daughter).

Best wishes to you.”

So you see… adoption can be a relatively straightforward and painless process, especially where one parent doesn’t need to be consulted – as he was left off the birth certificate!

Special Needs Trusts are often prepared for disabled adults with disabling conditions, such as: autism; paraplegia or quadriplegia; Alzheimer’s disease; mental illness; even chronic chemical dependency. The function of the SNT is to provide a pool of funds from which a trustee can distribute to the disabled person only so much money that they don’t imperil their ability to obtain government benefits such as SSDI (Social Security) or Medicare (Medical, here in California).

A few notes for practitioners:

(1) Many template-drafted SNTs restrict the ability to revoke, amend, or terminate. Revocation is one thing – by all means make the trust irrevocable. But the ability to amend or terminate are important tools for the trustee, and necessary flexibility every attorney should provide in the SNT.

What if the beneficiary comes into a flood of income? They may no longer want some funds tied up by the SNT.

What if the law changes, as it recently did to enable trustees to pay for clothing? If the SNT restricts the ability to pay for clothing, then the trustee can amend the trust to deal with the change in the law.

(2) It’s important to distinguish between third-party trusts and first-party trusts. A first-party trust is funded by the disabled person themselves, and should be a grantor trust. A third-party trust is funded by someone else, usually a parent or child, and remains revocable throughout the grantor’s lifetime. The rules are different regarding each, and so some investigation must take place to ensure that the source of funds really is that third party and not the beneficiary themselves. What if the client says: “My mother gave me this money, and it’s mine to do with as I please. But I feel obligated to put some of it into this trust – she wanted me to be able to care for her.” Arguably, the mother in this example transferred the money to her daughter in order to fund the trust!

(3) It’s usually a good idea to draft the Special Needs Trust as a stand-alone trust, rather than as as part of a larger AB or other living revocable trust.

It’s a common mistake by estate planning attorneys who don’t deal often with special needs situations, and it may seem more efficient to have the SNT kick in only on the death of the surviving settlor. But there’s good reason to consider drafting it as a separate trust. You can designate different trustees and successor trustees. You can give the grantors important insight as to how the trust will/must be managed by having them manage it during their lifetimes, while they can still modify or revoke it. Also, it’s likely you’ll be designating different residuary beneficiaries in the SNT than in the AB-Trust.

Just some things to think about. The most important advice, as always: consult an attorney with experience not just in drafting trusts but in advising successor trustees!

Good luck, and good planning!

In the short term, the California Supreme Court sounded very dubious in recent oral arguments about overturning the passing of Proposition 8, limited marriage to that between one man and one woman. It’s ridiculously easy to change the California Constitution, and they’re not about to take it on themselves to make it more difficult.

In the long-term, that means that we’re bound to see a new proposition on the ballot to amend the constitution to allow for same-sex marriage. Will it pass? Not at first. I sense the people are basically willing to have the supreme court say it’s unfair to discriminate, but will be less willing to stand up themselves and vote the change in. Eventually I see it coming. In the next 4-6 years? I don’t think so.

Additionally, I think the opponents of same sex marriage will attempt to make it more difficult to change the constitution – perhaps requiring a 2/3rds majority vote, in an effort to delay progressives.

Stay tuned!