Barger Law Blog

The U.S. Department of Health and Human Services has designated May 12-18th as National Women’s Health Week. It empowers women to make their health a priority and encourages them to take five steps to improve their physical and mental health and lower their risk of certain diseases:

                1- Visit a health care professional to receive regular checkups and preventive screenings

                2- Get active

                3- Eat healthy

                4- Pay attention to mental health (get sleep and manage your stress)

                5- Avoid unhealthy behaviors

The women in our office will be making efforts to act on these five steps, and encourage you to do the same. Please take an additional step that week as well:

                6- Prepare or review your Advance Health Care Directive with an attorney

Part of being proactive and aware of your health also means preparing for the future, and arranging who can best make your health care decisions for you if you are unable to yourself. You are able to do this via an Advance Health Care Directive. Additional health care documents may be necessary for your planning purposes as well, such as a Living Will and HIPAA Authorization.

Happy National Women’s Health Week!

Due to the current rates available, many are seeking to refinance their home loans. Pay careful attention to the paperwork you sign during the process. At the start of the refinance you may be asked to sign a deed that takes your home out of your trust and back into your own name. As the refinance continues you likely will sign lots of paperwork, and at the end you should insist on a deed transferring the home out of your own name and back into your trust. Your mortgage broker may not offer to or be able to do this, and if that is the case, contact your estate planning attorney for preparation of a new deed to your trust. Just as it should have been when your deed to trust was first prepared, this new deed to trust will need to be recorded with the county recorder as well.

This is a very important step to remember, because it is important to keep your trust funded. If your home stays in your own name after the refinance, it may later be subject to probate or another court process.

Do you socially use a different name than your birth name? Do your email accounts, paperwork, and business cards reflect a different name than your actual legal name? If you regularly use a different name than your legal name, it may be prudent to legally change your name so that all your records are consistent.

A name can be changed by filing a petition with the civil court. In the petition, you will be required to provide identifying information about yourself, such as your date and place of birth, your full legal name, the reason you are requesting your name change, and of course what you would like your name changed to.  A hearing date will then be assigned to your case,  and you will be required to publish notice of the hearing in a newspaper approved by the court in the county where you reside. At your hearing, the court will review whether there were any objections to your requested name change, whether proper publication was circulated, whether you have a legally appropriate reason for changing your name, and they will confirm the requested new name and its spelling with you. If the necessary filings and requirements are met, the court will then issue a Decree Changing Name reflecting the court’s order that your name has changed. The process currently takes about two months in San Diego.

Depending on your reason for changing your name, there may be a quicker process that does not require a court appearance. If you have been through a dissolution of marriage, you can file paperwork requesting to revert to your maiden name. If you can provide the court with the notice of entry of judgment, then the name change should be completed quickly and without a hearing.

Once your name is legally changed, don’t forget to take your decree to the social security office, the DMV, your banking and credit institutions, your employer, any educational institution you are attending, and to start changing all other accounts and records which reflect your former name. And of course, if you have an estate plan, let your estate planning attorney know so that your documents can be updated to reflect your new name!

The birth of a child is an important time to begin your estate planning, if you haven’t already. Not only will you want to plan and protect your child’s inheritance, but of more concern may be deciding who should care for your child when you are unable to should you become incapacitated, or if you’ve passed away while your child is still a minor. In California, guardianship determinations are made by the court. Guardianship is need for children under 18 years of age. By documenting guardianship nominations for your children in your Will, you are able to express your wishes to the court for consideration during the guardianship proceedings. The court will consider your wishes and will also consider what is best for your child, and, age permitting, will ask your child what he or she wants. The individual appointed as guardian of the person will have full legal and physical custody of your child, meaning that they will have the legal authority to make decisions on behalf of your child.

Some important considerations in naming a guardian may be the following: the guardian’s ability and willingness to serve, the guardian’s moral values and child-rearing principles, the guardian’s lifestyle, the town in which they live and the school districts there, the guardian’s family structure, and whether your children would assimilate well into a home with their own children. There may be financial concerns when naming a guardian as well; however those are concerns that can be addressed by your attorney when planning your estate.

Under the Internal Revenue Service Code qualifying non-profit organizations are exempt from paying federal income tax. To receive a classification under one of these code sections, an application must be submitted to the IRS with an abundance of information pertaining to the organization. The application process can be tedious and lengthy, so it is important to apply under the appropriate code section.

501(c)(3) Organizations

501(c)(3) organizations are public charities, private foundations, or private operating foundations with open membership. These are organizations formed for charitable, religious, scientific, literary, or educational purposes. Organizations with 501(c)(3) status are eligible to receive tax-deductible contributions.

501(c)(4) Organizations

501(c)(4) organizations are those formed and operated to promote social welfare, such as civic leagues or local associations of employees with limited memberships. These are organizations that benefit the common good, rather than primarily benefiting a private group of citizens. This classification is recommended if the organization seeks to engage in unlimited lobbying or campaign efforts, because 501(c)(3) organizations are not permitted to engage in political activity unless they notify the IRS of limited lobbying efforts. Donations to a 501(c)(4) are not tax deductible as charitable contributions.

Is it possible to have both classifications?

Yes. It is possible to have two separate but affiliated organizations. One would be a charitable organization under 501(c)(3) and the other a 501(c)(4) for political activities of the organization. An example of this is Planned Parenthood. The Planned Parenthood Federation of America is a 501(c)(3). There are Planned Parenthood affiliates across California formed as local non-partisan 501(c)(4) organizations, and as part of their political efforts, they were able to produce voter guides to assist with the 2012 elections.

Talk to your professional advisors before determining which classification is right for your organization. The IRS itself has identified that there is considerable overlap between these two classifications, and many organizations could qualify for exempt status under either code section.

In 2008 Congress passed a bill proclaiming the third week in October as National Estate Planning Awareness Week. The House of Representatives considered statistics that over 120,000,000 Americans do not have up-to-date estate plans, and 2/3 of Americans over the age 65 believe they lack the knowledge necessary to adequately plan for retirement. By passing this bill, they are encouraging estate planning and financial literacy to bring awareness to Americans.

Estate planning is a process that allows you to control your property while you are alive, take care of yourself and your loved ones if you become disabled, and give what you have, to whom you want, the way you want, and when you want. It also allows you to save every last tax dollar, professional fee, and court cost legally possible. Estate Planning Awareness Week is the perfect time to review your existing estate plan, consider implementing an estate plan, or to seek further education on the necessities of estate planning. Please contact us to learn more about estate planning and find out what is needed to protect yourself, your family, and your assets in the event of sickness, accidents or untimely death.

A trustee is the person or institution you name in your trust/estate plan who will administer your estate and carry out the instructions in your trust during your incapacity and after you have passed away. Ultimately, your trustee will be distributing your assets to your beneficiaries and, depending on the structure of your trust, may be overseeing and determining distributions for your beneficiaries as well. Your trustee has powers to do what they determine to be best for your estate.

So who should you name to serve in this important role for your estate? Does it have to be a family member? Do you have to name one of your beneficiaries as trustee? The answer to all of these question is no.

If you want to name an individual as your successor trustee, consider the following:

-Will they do well in a fiduciary role and make good financial decisions?

-Will they have the time to commit to carrying out the instructions in your trust?

-Will they be able to effectively communicate with your beneficiaries as needed during the administration of your estate?

Alternatively, you may want to select a professional fiduciary or corporate trustee as your successor. This may be a good option if you simply cannot decide on any one individual, if you predict conflict amongst your family members and prefer a neutral party to administer your estate, if you do not know anyone who you would trust to make good financial decisions, or if you have a large estate that may be best handled by a professional.

A professional fiduciary is an individual licensed by the State of California who is trained to serve in the capacity of a trustee, and will do so for a fee. Similarly, a corporate trustee will serve in the capacity of trustee at a fee, but an institution is named, such as a bank or trust company with a department that specializes in managing trusts.

We encourage you to put careful consideration into selecting your trustee, and to reach out to those people or institutions you consider placing in that role. If you plan well in advance and select the proper trustee for your estate, then you can rest assured that your assets will be managed well and your beneficiaries will receive the ultimate benefit from the estate you leave them.

     Owners and their pets form extraordinary relationships, to the point that many people consider their pets to be members of the family. You set up your estate plan for the benefit of your family and other loved ones, so it makes sense to include the pets you have grown to love so much in your estate plan as well.

     California law doesn’t let you make an outright gift to a pet, as they cannot legally own property. This means, for example, that you cannot leave your yard and dog house to Spot after you die. However, you can include a provision in your estate plan that allows you to state who you would like to take custody of and care for your pet, and leave them some money to ensure that your pet will be well taken care of. Alternatively, you may choose to give your pet to an animal protection organization that will care for, or find placement for, your pet.

     These options may not be sufficient if your pet requires more detailed or specialized care than can be expressed in your own living trust. For example, a horse may need specific exercise, nutrition, grooming, boarding, and training. Such instructions may require more than a mention in your estate plan and instead, those instructions can be expressed through a pet trust, separate from your own living trust. A pet trust allows you to preserve funds for the care of the pet, designate a trustee to manage those funds, state your instructions, and designate a caretaker to carry out your instructions.

     If your pet is an important part of your family, please talk to an attorney about how to include him in your estate plan, whether it be through a simple provision or creation of his own pet trust.

      You will hear the importance of estate planning from me over and over. That’s my job. Where you don’t expect to come across the message so frequently is in the entertainment industry.

      ABC sitcom Modern Family aired an episode during their second season called “Someone to Watch Over Lily” which centered on the characters Mitchell and Cameron trying to choose who would best take care of their daughter should something happen to them and guardianship be needed. It displayed the struggle that many of us are familiar with, in deciding who we ultimately feel could best care for our children and provide our children with the upbringing we desire.

      Comedy Central comedian Daniel Tosh recently asked his viewers to tweet what they think he should include in his last will and testament. While he of course put a comedic spin on this, it reminded viewers that you can express the gifts you want made after your death through an estate plan.

      The Descendants, a movie released in 2011, starring George Clooney and winner of both Oscars and Golden Globes, focuses on a struggle of what to do with a vast fortune of Kauai land held in a trust that is nearing its termination. Many estate planning messages are portrayed through this movie. In particular, that inherited wealth can lead to conflict, there are legal limitations as to how long a trust can last, and joint ownership of land can be problematic.

      If any of these messages near home for you, speak to an attorney to discuss how to plan for these situations that we can watch play out on television and in the movies, but could actually become a reality for us in our own lives as well.

     My next race is quickly approaching and as most people are living and breathing Football, I will be running the Surf City half-marathon on Superbowl Sunday. So what does football and running have to do with estate planning? Well, it seems like just about nothing. The Super Bowl means a day of good football, good food, a celebrity half-time show, and hyped-up commercials. My race promises sunshine, a good time and a beer garden at the end. Estate planning means a well designed plan that helps people protect their families and their money.

     Sports carry risks, and life itself carries risks. The head injuries suffered by professional football players have been publicly investigated over the past few years. A study commissioned by the NFL and conducted by the University of Michigan reported that former NFL players have been diagnosed with Alzheimer’s disease and other similar memory-related diseases at nineteen times the normal rate for men ages 30-49. The accuracy of statistics is always questionable; however it is apparent to any football fan that the players face injury when they are on the field. In reality, any sport or any career carries risk of injury, and the actions we take in our day to day life can always threaten us with injury as well. Forming an estate plan will guide you through selecting people to care for your estate and your family should you ever be faced with these circumstances and become incapacitated. Life is unpredictable; it is never too early to put a plan in place.

     All this said, let’s hope for a well played and injury free game this year….and a better season for our Chargers next year!

Are you setting new goals for yourself in 2012? The new year tends to get us all to stop and think about our life, and evaluate what we would like to change or better about it. These goals and changes may affect your estate plan if they involve family circumstances or relationships with those close to you. For example, do you hope to grow your family and have children this year? Or has your relationship with a friend or family member changed so they are (or are not) a very trusted and important person in your life now? Family and relationship changes may raise the need to update your estate plan to change the beneficiaries you have named, re-evaluate how you are providing for your children in your plan, and review the people you have named to serve as your agents for health care and financial decisions. To keep your estate plan aligned with your wishes, make it one of your new year’s resolutions to review your estate plan!