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Elder Law

Friday, June 5, 2015

What happens when a San Diegan dies with debts left behind?

  • WHAT HAPPENS WHEN A SAN DIEGAN DIES WITH DEBTS LEFT BEHIND?

In good times and in bad, San Diego will, trust and estate planning lawyers are intimately aware of their clients’ financial situations.  They see the plain facts; most people carry a heavy debt load.  Whether it is the person setting up an estate plan or one who has inherited from it, there are often questions regarding what happens to that debt.  Does money come out of the estate for medical bills?  Are adult children responsible for credit cards?  What happens to the mortgage?

As with so many aspects of law, the answers are somewhat complex, but here’s a basic look at what you and your San Diego will and estate lawyer might expect to see:

  • Mortgage Debt

When a home is inherited, its mortgage is, too.  Federal legislation forces banks to work with families who have inherited an encumbered (mortgaged) home.  Watch out though, these banks will expect payments to be made and may be resistant to providing inheriting heirs with the information they need to meet their obligations under the outstanding loan.  The exception to this, are reverse mortgages.  Reverse mortgages come due shortly upon the borrower’s death – with a maximum extension of a year from death.  Fortunately, new rules protect surviving spouses, even if they aren’t ‘on the loan.’   In California, all home purchase and most refi loans (except cash out loans) are non-recourse.  This means that in most cases an individual’s other assets aren’t liable if a mortgage is higher than the home is worth.  For Federally insured home mortgages, lenders must allow family members to acquire a property, prior mortgage free, for 90% of the homes appraised value, no matter how high the mortgage.  

  • Taxes

Taxes are sticky.  Most taxes stick to anything a person owing the taxes left behind. When it comes to paying bills left behind, taxes are usually exempt from claim period limitations and one of the highest priorities, needing to be paid before other debts.

  • Medical Expenses

This is an area where things can get a little dicey, so definitely work with a local San Diego attorney with experience in estate administration and probate to minimize the amount of medical debt left behind.  Who pays what and when is a tough question for outstanding bills.  More surprising for many families is that  if a person who has passed away received Medi-Cal benefits, those benefits become a debt on death and may need to be repaid from the estate.   If heirs receive distributions prior to Medi-Cal being repaid, they can become liable for all or part of the debt.  Again, the responsibility for medical and nursing home expenses is very complex and should be taken to a lawyer.

  • Credit Cards

As long as you aren’t a co-signer on a credit card, you aren’t personally responsible for them.  Remember, being an authorized user does not necessarily make you a co-signer. The companies can call the executor in order to collect from the estate, although there is a finite time frame in which to do so.  California law has procedures which can be followed to shorten the amount of time a person’s creditors have to come forward after they have died.  In addition, a good estate administration attorney can often get credit card companies to negotiate down outstanding balances in order to get a more certain and immediate payment.

  • Duty to Not Pay Unenforceable Claims

If you are not the only heir, remember that you must exercise due diligence in confirming a debt before you can pay it.  Remember, too, that when a debt is paid for by the estate, it lowers the overall amount that is left to be inherited.  It is amazing how many companies are unethical in their collection efforts.  Many pursue claims they know are no longer legally enforceable and sometimes, purely fictitious claims show up. 

  • Everyone Needs Help

Some debts must be paid from an estate.  Others do not.  Unfortunately, unethical collectors can haunt family members and it is hard to know what is what without good legal help.  A good San Diego will, trust and estate planning lawyer can help you deal with these issue properly when the time comes, or help your family proactively plan ahead to limit the value of your estate exposed to creditors using legal tools such as trusts.  To discover all of your options when dealing with someone’s debts after they have died, contact our centrally located Weissler Law Group office at (619) 281-1888


Tuesday, January 20, 2015

Estate Planning When You Have Assets, but no Children

For some, it’s all about the kids.  A lot of San Diegans only come in to see an estate planning lawyer to figure out how to take care of their kids once they are gone.    For those with minor children, this might revolve around choosing legal guardians, setting up educational trusts, and making sure there is someone to manage any assets left for the kids.  Beyond that, parents never stop being parents.  Parents want to be certain that their deaths don’t disrupt their children’s lives, and most of all, they want to pass on three things to their children:  memories, advantages in life and financial security.  These are good reasons but they skirt around the real reason which is to maintain control over themselves, their children and their assets.

But what about those who don’t have children?  What do those with money and no kids direct their estate planning lawyers to do?

Who Are These People?

According to a recent Gallup Article, 14% of adults over age 45 are without children.  There are quite a lot of adults without children who are doing their estate planning.  As a group, these childfree individuals and couples tend to be more educated and affluent than the general population.  Forty-five and up is a broad group of people – from dual income no kid couples to singles nearing retirement. 

Big Issues

For individuals without children, some estate planning choices can be more difficult.  The vast majority of individuals with children empower their children to act for them in financial and medical decision making if they do not have a spouse to make those decisions for them.  According to a Bloomberg Article by Rich Miller (analyzing Bureau of Labor Statistics data), 50.2% of all Americans over 16 years and older are now single.  If this is true of individuals without children, then that group of over 7% of the populace faces a doubly daunting challenge in choosing who should act for them if they are incapacitated or have died.

Who do you trust?

Younger adults without children may have their parents or siblings available to step in to act, as well as nieces and nephews.  Unfortunately, it is rarely that simple. 

While our national entrepreneurial and tech booms have created a still growing class of younger men and women who have come into money before they’ve had the opportunity to get married and/or start a family, long work hours are leaving them without large circles of close friends outside of work.  This narrows their range of choices.  We are seeing co-workers serve as executors and successor trustees for individual who they barely knew outside of the workplace. This can be an invitation for surviving family members to get bent out of shape.

Older adults without children may find that their best choice of a person or company to act for them may be a professional trustee.  Professional trustees range from Trust Companies with nationwide reach to individuals who are licensed Professional Fiduciaries, Attorneys or CPAs.

Who do you love?

Of course, many of the people described above will want at least a portion of their estate to go to family members.  Aunts and uncles may want to set up college funds for their siblings’ kids or grandkids.  Adult children may want to leave support behind to make sure that Mom and Dad are set for retirement and beyond. 

Young or old, many people seem to be showing an interest in leaving some of their wealth to charitable causes.  Many individuals without children are choosing to leave more than a tithe (10%) of their assets to support their causes or make a difference when they are gone.  San Diego will and trust lawyers sometimes refer to this as “legacy planning.”  Their client identifies a cause that he or she is particularly interested in supporting and then names that cause as a beneficiary in their will, trust or on certain accounts or policies.  A growing approach for public good minded individuals is the use of donor-advised funds.  Funded during lifetime (creating a current charitable deduction), or at death, these alternatives to the foundations created by the very wealthy hold and invest funds to be given to charities selected by the donor immediately or at a later date.  By using a donor advised fund, you can provide for charitable gifts to be made and causes to be supported, long after you are gone.

Planning Early Is Key

The fact that an individual does not have children does not make the need for estate planning any less important.  The California Probate Code has a plan for your assets if you don’t make a plan.  Arguably, men and women without children have more incentive to make their wishes legally binding and known. They cannot just “leave everything to the kids.” 

We all spend a lifetime building our nest eggs.  We don’t want those eggs tossed about without care.  Most individuals want a say in what happens to the money they’ve accumulated over their lifetimes.  Equally importantly, almost everyone wants a say in who can make medical and financial decisions for them in an emergency if they cannot do so for themselves.  There may be charities you want to benefit and there are choices to be made in the best way to support the causes you believe in.  

If you are an adult without children, it is important that you meet with an estate planning attorney.  An estate planning lawyer can create for you the tools and structures needed for you to control your property and insure that your medical treatment wishes are followed. 

When friends ask when they should see an estate planning attorney, I tell them “we all drive on the freeway; we don’t know which day is ours.”  See one before your family needs for you to have seen one.  Attorney Joel Weissler and Attorney Damien Snow can be reached at (619) 281-1888.

 


Monday, January 5, 2015

How Can I Talk About It? How do I talk with my Husband, Wife or Parents about their Need to See an Elder Lawyer?

Buy a Blanket 

In spite of the fact that the Calendar says that it is winter; in Southern California we seldom feel too cold. We forget about the bite of winter experienced in other parts of the country. Last week’s cold bite was a bit of a surprise, a shock to many who scrambled to get out extra blankets, seldom used jackets and turn on the heat. For many others, since this cold wave hit San Diego between Christmas and New Year’s, it became an excuse to celebrate and take a trip up from San Diego to Julian or Idyllwild.

In San Diego it can be easy to treat aging like the seasons. We go on with our lives as if it was endless spring, summer, or autumn and just don’t think about winter. But, sometimes we have to think about it. Based on the calls to my office since Thanksgiving, more and more families are thinking about it after visiting with their parents and grandparents.

Elder Care and Estate Planning are Hard to Think About

Part of thinking about aging and thinking about the hazards and expenses of aging is thinking about hiring an elder law attorney. For Seniors and their families living in San Diego, the choice about whether or not to hire a lawyer for estate and elder law planning is not one to be taken lightly. Unfortunately, going to an attorney for a will or trust, for Veteran’s in home care benefits planning, or to protect a family’s nest-egg against possible future nursing home expenses, is a topic that can cause a lot of anxiety both for the senior and for his or her adult children. There are a number of reasons that it’s an uncomfortable topic. 

Of course, the most obvious is that the need for an elder lawyer brings up the topic of the senior’s mortality. An attorney can be brought in for many reasons, one of which is estate planning. And with estate planning comes the reality that each of our lives will come to an end. This can be especially distressing to an elderly person, but can be even more disturbing for their family members and friends.

Facing a Change in Seasons

Another reason that seniors and their families in San Diego find themselves wanting to work with an elder lawyer is because the senior is beginning to make decisions that are not in his or her best interest. No one wants to tell Mom or Dad that it might be time to stop driving, that they shouldn’t have control over their finances, or that it’s time to consider moving to a nursing home. When an elder lawyer comes into play, it’s often to address these exact topics.

We all need to Prepare for Winter 

The conversation can be softened a bit with different approaches. One common one is for the adult child to talk about others who have had a hard time because they, their spouse or their parents didn’t have proper powers of attorney or healthcare advance directives in place. The best way for anyone to make certain that their wishes are followed if they are incapacitated is to take control ahead of time. Each of us can take control ahead of time only by choosing who will be our voice and what they will say for us, by giving them specific written instructions.

One of the things that often brings people to an elder law lawyer is the realization that a senior is starting to decline in health. This could be physically, mentally, or both. Sometimes this realization comes about when family members see that one of their parents is exhausted from taking care of the other. This often opens the door to talking about getting help and paying for help. Elder law attorneys are experienced in helping families find and afford care while protecting their assets.

Of course, it is always better to work on a long-term plan before ill health becomes an issue, but if your family has waited, there are still a lot of options available. Most Seniors want to make plans and not merely have plans made for them. Once the issue of planning has been brought up, many Seniors can be motivated to move forward and plan - so that the plan for them, is their own plan, – not their children’s plan or anything else. The better a senior’s health, the more say that he or she can have in devising a plan. Planning earlier, while in better health, makes available more options.

Plan to Prevent Conflict

Planning to protect against the challenges of aging is often a full family affair. It is usually, but not always, a good idea for adult children and sometimes siblings to be included in the planning process. Seniors who have included their families in their attorney client planning meetings are more likely to follow through. Follow through usually gives the best results. More importantly, keeping family members in the loop can help to reduce friction later because everyone is aware of the plan and knows how it will be enacted. If there are concerned parties that aren’t available, I strongly recommend that they are communicated with for the same reason.

If there is disagreement among a senior’s adult children, it may be in everyone’s best interest to bring in a third party. In addition to using a San Diego elder law attorney to address these issues, there are geriatric care managers and mediators who are trained in how to refocus everyone on the true goals of the plan, rather than letting things break down and become a grudge match rehashing wrongs and perceived wrongs which may be decades old.
Just as we talk about spring as the time for cleaning, January is a time for putting things in order and making plans.

New Year's Resolution 

Like northerners clearing snow in winter, as long as it falls, you keep shoveling until the driveway is cleared and stays cleared. Spending a little time with a San Diego elder law lawyer now, making a plan, and putting your affairs in order, can make a world of difference down the road. 


Monday, October 13, 2014

Lauren Bacall took care of her Dog First - Create a Trust for Your Pet

Lauren Bacall who passed away August 12, 2014 took care of her Papillon Sophie as the first item in her will. Lauren Bacall to care of her Dog First
Bacall, whose will made public Friday when it was filed with the Manhattan Surrogate’s Court, wasn’t crazy. She left $10,000 to her son subject to a legal obligation that he hold and manage the $10,000 for the care of her faithful and loving dog. She left $250,000 in trust for each to her Grandchildren.  Her Grandkids can use the money towards their college education, but otherwise won't receive any of it until they are 30 years old.  Bacall, who was once married to Jason Robards, Jr. and then later to Humphrey Bogart, left the bulk of her 26.6 million dollar fortune in equal shares to her children - Sam Prideaux Robards, Stephen Humphrey Bogart and Leslie Bogart.


To many faithful pets are destroyed when their owners can no longer take care of them. Who will care for your dog or cat when you pass away? What will happen to your bird if you become incapacitated? For many people, providing care for their pet after they pass away or if they become incapacitated is a very big concern. In reaction to pet owner concerns, most states (including California) have statutes that provide for the enforcement of trusts created for the benefit of pets.

Unlike your children or other relatives or friends that you may leave money to via your last will and testament, an animal cannot be a beneficiary of your will. Pet owners, instead of naming the pet as beneficiary, must designate someone to take care of their pet after they die and they can then leave money to that person or place in the hands of another to pay for the cost of providing care.

Prior to specific statutes which allow for the creation of an enforceable “pet trust,” if an individual left money to a family member or friend in their last will and testament stating in the document that the bequest was solely for the purpose of caring for their pet, the family member or friend would be under no legal obligation to spend the money on their pet. In fact, they could take the pet to the pound and keep the money for themselves if they chose to do so. Any money left in a last will and testament to an individual “for the care of a pet” was often treated as merely a request and unenforceable in a court of law.

While many might say, “I trust my brother with my dog and I know he would take care of him”- what happens if your brother’s son becomes allergic to your dog? Or, what happens if your brother moves into an apartment complex that won’t allow pets? A pet trust can provide direction regarding any of the unforeseen circumstances that may arise.

Setting up a trust for your pet is much like setting one up for a person. The trust is a legal entity into which you put money and then designate a trustee who is responsible to safeguard and administer the money. In the case of a pet trust, you designate a caregiver and then the trustee is in charge of making payments to the caregiver for your pet’s expenses (special dietary needs, grooming, pet toys, veterinary care, etc.). Of course, it is always a good idea to name one or more alternate trustees and caregivers in the event something should happen to them. In addition, a provision of the trust will need to provide for what happens to the money you have set aside for your pet after their death. Many people chose to have the remaining balance go to the caregiver or a charitable organization.

It is important to keep your trust up to date with current information and to ensure nothing has changed in your designated caregiver’s situation that might warrant changing designees (are they still willing to take on the commitment, can they still physically handle the responsibility, etc.). It is also a good idea to give a copy of the trust to your chosen caregiver, any successor(s) and family members who may be involved with the care of your pet.

Creating a trust for your pet is not just for the wealthy or the eccentric. It is a relatively inexpensive and practical way to ensure you have provided for your pet when you can no longer do so because of death or incapacity.

We at the Weissler Law Group are pet people and are experienced in creating trusts for pets involving small to large amounts of money. We can be reached at (619) 281-1888,


Monday, October 6, 2014

Experienced San Diego Trust Attorney urges you to “Plan Now To Avoid Becoming A Burden Later”

As a San Diego trust and estate lawyer I help all sorts of people deal with the subject no one wants to talk about—what happens after you grow old and when you die. After your death, when your loved ones are grieving, it can be hard to devote proper time and energy to the details of your funeral and post-mortem affairs. If you plan some of this in advance, your children can be certain to respect your wishes, while having the time they need to grieve. 

One important issue to discuss with your children is how you want your body to be handled after death. Do you want to be cremated or buried? Do you want a large headstone, or something simple? If you are cremated, do you want to be in an urn or interred at a cemetery? Would you like a religious service, and if so, what kind? It may seem obvious to you what you would like, but sometimes your children may not know, and may end up fighting at a time they should be coming together to mourn. For a substantial percentage of San Diegans their religious faith plays a factor in what final arrangements they feel are ‘right’ for them.

Many people pre-pay their funeral expenses, so it is important to let your children know if you have. Speaking with other Estate Planning Attorneys in San Diego about what is called "pre-need" planning, I have been amazed.  I have been amazed at how many of us have witnessed times where there was a plot paid for, but the children didn’t know, and so paid for another!

What about your obituary? Trust and Estate lawyers in San Diego regularly see cases where relatives are angry because the children got details wrong in their parent’s obituary listing. If you pre-write your own obituary, you can make sure that all of the details are correct, and that it says precisely what you want it to. It can be humorous, serious, or a little of both; if you write it, you control the message.

Planning for final disposition of your remains and putting together your own obituary will lift an enormous burden from your family’s shoulders.

Have you written a will? You’d be surprised by how many fights happen once a parent passes away. If you want your mother’s china to go to one child and your father’s tools to go to another, be sure to put this in writing. Better yet, have your children over to talk about what each one may want when you are gone. It’s awkward, yes, but by finding this out and detailing it in your will, you can save a lot of fighting after the funeral. The inheritance you want to avoid leaving is a legacy of creating conflict between your children.

In California we urge our client’s to go beyond having a simple will. Here, wills are only instructions to the Probate Court on how you wish your assets to be distributed after you die. If an individual here in San Diego dies directly owning real estate or more than $150,000 in total assets a probate is almost always required unless action to side step the probate process is taken. Probate is expensive and slow. For most families the best way to side step probate is by having a living trust. A living trust can also protect your family from needing to establish a conservatorship over you if at some time are not able to make decisions for yourself.

Creating a will and if appropriate a trust will lift an enormous burden from your family, reduce or eliminate the headache of going to court and with a small bit of luck, reduce the chances of your surviving family member fighting with each other.

What about an advance directive for healthcare decisions? Creating this document, which has evolved from living wills, is one of the best uses of an estate planning lawyer. You need to have, in writing, what you would like to happen in the event that you are ill. The more you customize this document the more you take the burden of these decisions off of your family. Do you want to be resuscitated? How much intervention do you want? Do you want to be left on life support? Fights over this can divide a family. It did mine. Knowing in advance what you want, and giving your wishes force by setting them down in a legal document, will make things so much easier for your family. It will make it easier for them when you are otherwise unable to tell them what you want – or don’t want.

What about long term care? Some Estate Planning and Trust Attorneys, like those in our office have additional training to help clients protect their assets from long term care expenses. Attorneys with this extra training can help you put in place structures to make certain you can get the care you may need, at home or elsewhere.  It surprises to many families who don't find out until everything is gone that these elder law techniques can at the same time preserve your assets for either your spouse or to help your children be more secure or even live better lives when you are gone.

Part of every estate planning and trust attorney’s job is to make things smoother and easier for our clients, their spouses and children. In order to make this happen, however, you need to be sure that they know what your wishes are for your funeral, for your assets, and for your body in ill health. By writing all of this down ahead of time, you can save everyone grief at a time when they need the space to mourn.

For more information and help in providing for a disabled family member, call the Weissler Law Group at (619) 281-1888 to set a time to speak with an attorney with the answers and advise you need.


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The Attorneys of the Weissler Law Group assist clients in San Diego, California as well as in: Coronado, Pacific Beach, Del Mar, Solana Beach, La Jolla, Del Cerro, La Mesa, Lemon Grove, Santee, El Cajon, Rancho Bernardo, Poway, Escondido, National City, Spring Valley, and Chula Vista.



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