Probate is Going to Get Worse in These Tough Economic Times
One of the typical goals in estate planning is to avoid the probate administration of your estate. The principal reasons for avoiding probate administration are: (1) the cost; and (2) the delay associated with the process. In Los Angeles, the process of probate administration is controlled by the Los Angeles Superior Court system, nation's largest trial court system, with 600 courtrooms in 50 courthouses throughout the county.
These tough economic times have caused problems for all types of governmental agencies and private businesses. California, in particular, has suffered from massive budget operating deficits in recent years that have required severe cutbacks in most areas of governmental services. Over the past year or so, these budgetary problems have had a direct impact on the Los Angeles Superior Court system. Court fees, those charged for filing petitions and various pleadings with the Los Angeles Superior Court, have been slowly raised for most filings, including probate filings. Starting in July 2009, the Superior Court implemented a monthly furlough program, where the courts were closed the third Wednesday of every month. While the employee furlough program has been difficult, court personnel have made Herculean efforts to continuing the orderly processing of legal matters.
Unfortunately, the news of California budgetary problems is only growing worse and, earlier this week, there was a stunning announcement that will undoubtedly impact the speed of the probate administration process. On March 17, 2010, Presiding Judge Charles McCoy announced that the Los Angeles Superior Court will lay off 329 staff members and closing 17 courtrooms county-wide. The layoffs will most likely not be the last of the personnel cuts. Court officials predicted 500 more people could be laid off and 50 more courtrooms closed by September 2010. In announcing the cuts, Presiding Judge Charles "Tim" McCoy warned of delays and longer lines. "When you cut this deep into the workforce of this court, the system must ultimately wear down,"McCoy said.
Now, more than ever, it is important to create an estate plan that avoids the cost and delay associated with the probate administration process. A living trust is a private agreement that allows your chosen fiduciaries to administer your estate privately, outside of the Superior Court. A living trust, combined with powers of attorney, allow your loved ones to privately manage your affairs in the event of your sudden incapacity. These documents, working together, allow your loved ones avoid having to file a probate administration proceeding, or seek a conservatorship, through the Los Angeles Superior Court system. A well-crafted estate plan is usually significantly more economical than relying on the default probate systems administered by the Los Angeles Superior Court. If you have not done so, create an estate plan today—your loved ones will be grateful for your foresight.
New Ebay-Like Site Helps With Estate Administration
Likewise, trustees and administrators are often left with the emotionally challenging task of fairly dividing up a lifetime of personal property among beneficiaries or heirs. As the old adage goes, one person’s garbage is another person’s treasure. Some items particularly have little or no commercial value but immense personal value to the heirs or beneficiaries. How does one divide grandma’s favorite quilt among competing heirs without cutting it into pieces? The division of personal property can often be one of the more stressful aspects of estate administration.
Recently, a new web site has offered a creative solution bringing market forces to the equitable distribution of personal property. According to its promotional material, eDivvyup is an online auction site designed specifically to help with the division of the deceased personal’s property. Operating in a fashion similar to eBay, an auction on eDivvyup is a private auction restricted to invited participants. The trustee or administrator catalogs the deceased’s personal property and allows the beneficiaries or heirs who are interested to bid on it. As aptly stated on the eDivvyup web site, “While specific items may hold sentimental value for you, they are not worth the fighting and long-term damage to relationships.” Thus heirs and beneficiaries can express their true desire for particular items of personal property through the efficient application of market forces.
While not necessary or appropriate for every estate, the eDivvyup site appears to offer a novel solution to an age-old problem of dividing personal property that may be commercially worthless but emotionally priceless. According to the site, eDivvyup offers its services for $49.99 for the first 50 items and an additional 99 cents for each additional item listed. If you find yourself facing a King Solomon dilemma, eDivvyup may be just the solution.
Treated Like a Dog?
Now it appears that poor Trouble will not receive the entire gift and have to survive on a mere $2 million. Helmsley’s grandchildren alleged that Helmsley was not mentally competent when she signed the 2005 will which left the large bequest to Trouble. According to this article in the New York Post, a Manhattan judge approved an agreement to reduce Trouble’s inheritance from $12 million to $2 million. Under the new deal, $10 million of Trouble’s bequest will go to Helmsley’s large charitable foundation.
It seems only appropriate that Leona Helmsley, dubbed by some as the “Queen of Mean” would have an equally controversial animal. According to a former housekeeper, Trouble slept in Helmsley’s bed and was fed chef-prepared meals in porcelain bowls and silver trays. This same housekeeper actually sued Helmsley for nerve damage she allegedly suffered after being repeatedly bitten by the animal. Trouble’s care taker estimated Trouble’s annual expenses at $190,000 including an estimated $100,000 for the dog’s security squad (which was apparently warranted because of the alleged death threats against Trouble). Given that Trouble is already nine years old, Trouble’s trustees did not oppose the settlement, apparently believing $2 million was adequate for Trouble’s care.
Can I Avoid Probate by Placing My Child on Title to my Assets?
Under California law, joint tenancy includes what is referred to as the “right of survivorship” which means that when one tenant passes away, the asset transfers to the surviving tenant by operation of law. With a bank account, a surviving tenant can present a death certificate to the financial institution and remove the surviving tenant from the joint tenancy account. With real estate, the surviving tenant executes a form known as an affidavit of death of joint tenant which then places title solely in the name of the survivor. While these devices can work well with domestic partners or married couples (who are also bound by family law), they often fail when used with other parties such as children. In fact, using joint tenancy in these situations often creates more problems than it solves.
With respect to financial accounts, the decision to place another person on the account as a joint tenant grants an ownership interest in the entire account to the new joint tenant. The most obvious risk is that the new joint tenant has ownership over the entire account, and can clean it out almost immediately. While the original owner would have a legal claim against the new joint tenant under these circumstances, often you have to sue the joint tenant and find the missing assets before they will be returned (which is frequently challenging if not impossible in many cases). With respect to real estate, making such a transfer, unless accompanied by separate agreement, is frequently considered an irrevocable transfer. What this means is that if the original owner changes his or her mind about disposition, or wants to sell or refinance the property, the original owner will not be able to do so without the consent of the new tenant.
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The Latest Service: a Virtual Safe-Deposit Box?
One frequent issue that arises in both estate planning and estate administration is effective communication. Many individuals are concerned that their beneficiaries will not find their estate plan, asset accounts or important confidential information after their death. Often these individuals don’t want to share their confidential information with their beneficiaries while they are alive, but are concerned that their beneficiaries will not find the information after their death. Conversely, I have encountered numerous heirs and beneficiaries (usually administering probate estates) who are concerned that they might not have located all of the decedent’s assets or accounts.
One company, iGoodBye.com, has harnessed the power of the internet to create a novel solution to the problem of communicating confidential financial information after your death. At iGoodbye, the user creates a private account which can store copies of estate planning documents, financial accounts, passwords and other private, personal information. The user is provided with a password that will allow his or her beneficiaries to access the private information only after the users’ death (your death is verified with a death certificate). The user is given the security of knowing that all of their information is stored in one central location but accessible by their beneficiaries only after their passing. Essentially, the service appears to be a virtual safe-deposit box for your important estate documents. At this posting, iGoodBye.com service is $29.99 per year and the service can even be used without cost, if the user agrees to charge the annual cost to his or her beneficiaries following the users’ death.
Even When Done Correctly, Managing Finances During Incompetency Can be Challenging
The first article discussed the challenges faced by one couple who, after hiring an attorney to prepare a durable power-of-attorney, presented the document to Boston-based Fidelity Investments, where the couple held their retirement accounts. Despite the fact that the power-of-attorney had been prepared by an attorney, Fidelity initially advised the couple that their retirement plan didn’t have “a power-of-attorney provision.” In other words, Fidelity would not honor the power-of-attorney. Fortunately, Fidelity is reviewing its policy and anticipates being able to accept permanent versions of powers-of-attorney in the next few months.
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Ray Charles' Management Problems Continue After his Death
In 2002, Charles gathered his children and told them that the bulk of his assets would be left to the foundation, but that $500,000 would be placed in trusts for each of them. Charles also indicated that there might be more for them “down the line,” which led some of his children to believe that they would own the right to profit from licensing his name and likeness. In 1992, prior to his passing, Charles established a partnership with two of his children to market apparel and other items bearing his likeness. Charles’ estate plan, however, is apparently silent with respect to the rights associated with the use of his image, rights that his children contend he pledged to them.
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