December 5, 2016 By

Q&A: Proposition 13 considerations

Dear Liz: I read your column with some interest since I just had a client who received a life estate from his long-term partner. They neither married nor formed a registered domestic partnership, either of which might have saved my client some bucks.

The Los Angeles County assessor reassessed the property at its full value even though the remainder will go to my client’s partner’s children on my client’s death. The property was originally purchased in the 1970s. I’d like to think that I or any other estate planning lawyer could fashion a satisfactory work-around for this potential problem faced by folks who wish to give a life estate to someone without Proposition 13 protection and the remainder to someone with that protection.

Of course, one must always bear in mind that the tax tail should not wag the business dog, so a weighing of burdens and benefits is always in order in any plan.

Answer: Here’s another case where stinting on an estate planning attorney’s fee probably cost the heirs vastly more.

For those of you who don’t live in California, Proposition 13 limits property taxes to 1% of the assessed value, and assessments typically can’t increase more than 2% a year until the home changes hands. The lower “Prop. 13” value of a home can be inherited by the children, which means their tax bill would be a fraction of that owed by someone who purchased a similar property more recently.

Instead, the property in question lost its Proposition 13 protection and its tax bill more than tripled.

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December 5, 2016 By

Q&A: Transferring property after death

Dear Liz: Just a quick comment on the woman who contemplated transferring her house to her partner and daughter as joint tenants. One must always consider the property tax impact on such transfers. In Los Angeles, real property that is transferred to a transferor’s significant other who is not the spouse or domestic partner will ultimately be reassessed by the county assessor. There are a number of property tax reassessment exclusions on transfers, such as from a parent to a child, from a person to his or her revocable trust and between spouses. This is why all factors must be considered before such a transfer is made.

Answer: A revocable transfer on death deed allows real estate to avoid probate in many states, but this option shouldn’t be used before thoroughly researching the consequences and consulting an estate planning attorney. Read on for an actual case where an ill-considered transfer had big financial consequences.

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December 5, 2016 By

Q&A: Does moving to a new state necessitate a new living trust?

Dear Liz: My husband and I have a revocable trust that was drawn up in Florida. We live in California now. We are renting and don’t own a house. Do we still need a trust if we don’t own property and have just one adult child to leave our financial funds to? One tax planner wants to charge us $1,800 to revise our trust to comply with California laws. That sounds high to me. What do you recommend?

Answer: Any time you move across state lines, you should have your estate documents reviewed and — probably — revised. State laws differ, and in this case you moved from a common law state to a community property state, where the rules differ a lot. Property acquired during marriage in a common law state isn’t automatically owned by both spouses, while in community property states, it typically is.

“Property,” by the way, doesn’t just refer to real estate. It refers to pretty much all your assets, including financial funds.

A relatively simple revocable living trust typically costs $2,000 and up, so the price you were quoted does not seem high, but you can check with one or two other estate planning attorneys if you want to compare costs.

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November 28, 2016 By

Q&A: What to consider when deciding how to bequeath your home

Dear Liz: I’m at 74-year-old retired woman living in a completely paid-off condo in California. I hold title in my name only. I would like to add my partner of 20 years and my married adult daughter to my home title so they will not have to go through probate if something happens to me. What would be the easiest way to do that? Someone told me a quick deed to each person giving them a third of the condo. I want it as joint tenancy so the condo would just go to the survivors. My parents always held title with my brother and myself. Do you see a problem with this?

Answer: The “quick deed” to which you refer is probably a quitclaim deed, which would transfer your entire interest in the property to someone else and possibly create gift tax issues. That’s not what you want.

Another option is a revocable transfer on death deed. Like many other states, California now offers this option so that real estate can bypass probate. You would retain ownership of the condo until you die, when it would pass to the people you designate.

But please think carefully before bequeathing a home to two people, especially two who aren’t related or married. What if your daughter needs to sell the house to raise cash and your partner doesn’t want to move? What if your partner needs to remodel the home as she ages but your daughter refuses to share in the costs? Would one have the wherewithal to buy out the other?

Another way to avoid probate would be to create a revocable living trust that allows your partner to live in the home until her death, said Los Angeles real estate attorney Burton Mitchell. The property then could be transferred to your daughter. It may not be the right solution, especially if your partner and daughter have similar life expectancies, but it’s one of many you should explore with an experienced estate planning attorney.

Filed Under: Estate planning, Q&A, Real Estate Tagged With: , ,
October 24, 2016 By

Q&A: How to pursue money owed to heirs

Dear Liz: My stepmother passed away in December 2006, and her executor, who was her financial planner, distributed the estate according to her trust. A while after this, I discovered that she had a life insurance policy that hadn’t been addressed. The executor pursued this and found that $80,000 was due to the three primary heirs. However, he kept saying things were “in process.” At least a couple of years later, he said he had the check but didn’t know how to proceed because the estate was settled and also the insurance company had been taken over by another company. I finally saw the actual check (in April 2016) that he had. He claims he’s pursuing this but keeps going silent on us for extended periods of time. What can we do?

Answer: One possibility is that he showed you a phony check after pocketing the money. The other possibility is that he’s stunningly incompetent. It’s not clear which option is more disturbing.

Any estate planning attorney, or financial planner who has taken an estate-planning class, could tell him that life insurance proceeds typically pass outside the probate process, which means the estate wouldn’t necessarily have to be reopened. (Even if the estate did need to be reopened, every state has procedures for doing so.)

“I would think that the executor could merely endorse the check over to the three heirs,” Los Angeles estate planning attorney Burton Mitchell said. “Or he could open an estate bank account, deposit the check, write a check to the beneficiaries and then close the account.”

At this point, of course, the check may too stale to cash, but that’s not an insurmountable problem either. The current insurer would be able to reissue the check if the assets haven’t been turned over to the state or “escheated.” If the money was escheated, the executor can file a claim with the state to get it back.

Blaming his inaction on the insurance company takeover is absurd. All he needed to do was to call the new insurer, which has all the records of the old one.

The heirs have a number of options. They can petition the probate court to order the executor to distribute the life insurance proceeds. They can hire an attorney to help them do so or to contact the executor to demand he act, or both. They also can file a complaint with the company that employs him (assuming he’s not self-employed), with the regulator that oversees him and with the entity that issued his credentials, assuming he has any.

What they shouldn’t do is wait any longer. The executor’s inaction has already cost them years of lost potential investment returns.

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October 4, 2016 By

Q&A: Social Security survivor’s benefit

Dear Liz: My husband will retire next spring but has wisely decided to not collect Social Security until he is 70. I have been retired for several years and have been collecting my Social Security benefits, which are significantly less than what his will be because he was the higher wage earner. Should he die before age 70, would I still be able to claim, as his surviving spouse, his larger benefit, even though he would not have started collecting it yet? The information I read only talks in terms of the higher wage earner already collecting Social Security benefits before his or her demise.

Answer: Even if your husband dies before starting Social Security, you can collect the larger benefit he’s earned, including any delayed retirement credits from putting off his application.

Those delayed retirement credits increase his benefit, and yours as the surviving spouse, by 8% each year between his full retirement age of 66 and age 70. That can make a huge difference in the quality of life of the surviving spouse, who has to get by on a single check after the other partner dies.

Filed Under: Estate planning, Q&A, Retirement Tagged With: , ,
September 26, 2016 By

Q&A: Changing the executor of a will

Dear Liz: You recently wrote about a stepmom who dismissed her deceased husband’s son as an executor. Sometimes a will provides that someone such as the surviving spouse can alter the executor pattern. This is done to keep the children in line.

Answer: That’s certainly a possibility. But if that’s the case, the stepmother could simply show at least that portion of the will to the other children to allay their fears. The fact that she hasn’t shared the will, which should be a public record at some point, is reason for concern.

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September 19, 2016 By

Q&A: Stepmom alters terms of dad’s will

Dear Liz: My father recently passed away and his will named my stepmom’s daughter as executor along with my brother. My stepmother just informed my brother that she removed him from that role, telling him it’s easier to just leave her daughter as the executor as she lives much closer. Is this legal to remove him after my father’s death? The rest of his five children have not been able to see that will.

Answer: Your stepmother doesn’t get to alter the terms of your dad’s will after his death. As mentioned in a previous column, a probate case should be opened in the county where your dad died and the will is among the paperwork that should be included in that case. It would become public record at that point so you would all be able to read it.

Your stepmother’s unwillingness to play by the rules indicates that you may need some legal help to make sure your dad’s wishes are carried out. The five of you should consult a probate attorney.

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September 6, 2016 By

Q&A: Naming co-executers

Dear Liz: Is it legal for my parents to appoint me co-executer of their estate, along with my sister, without asking me first if I was okay with this, and keeping me as co-executer after I told them I do not want the responsibility? My sister is more intelligent and competent than I am and would do a better job of this by herself.

Answer: Your parents can name pretty much anyone they want, but that doesn’t mean you’re legally obligated to accept the role when they die. You’ll have the right to decline.

If your parents don’t name an alternate, your sister may be allowed to serve on her own or another executor may be appointed by the court, depending on how the will is written.

Obviously, your parents are being short-sighted by trying to force you to serve when you’ve made your feelings clear. Being an executor can be a time-consuming, complex and often thankless task that shouldn’t be foisted on anyone who’s not willing. If they don’t trust your sister to function alone, they should name someone else—and get that person’s permission before they do. It’s smart to name an alternate or two besides, in case their choices also decide they don’t want to serve.

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August 8, 2016 By

Q&A: Amending a living trust

Dear Liz: My husband and I had a lawyer draw up a revocable living trust and a pour-over will six years ago. We need to amend a couple of areas, and I found it could be done with a form from a self-help legal site. Also, we need to add our home into the trust. My husband doesn’t want to use a lawyer. Can we legally do the amendment and addition of the home without a lawyer?

Answer: Sure. But your heirs may pay for any mistakes you make.

The big red flag is that you haven’t transferred your home to the living trust, even though you’ve had six years to do so. If it’s not in the trust, it will be subject to probate, the court process that the trust is meant to avoid. You need to be extremely diligent if you’re going to try to create a do-it-yourself estate plan, and you’ve already proved that you aren’t. All you’ve done is undermine the estate plan you paid for years ago.

Amending the trust, and having a lawyer help you transfer your home into it, probably will cost a fraction of what you paid originally. It also would give your attorney an opportunity a chance to review the documents in case other changes need to be addressed. A relatively small investment could pay off in peace of mind that the job has finally been done right.

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