Shortly after they were married, Mr. Tollefsen complained to relatives that his wife was not taking care of him as she had promised to do and he began living in a senior care facility. When he died , his relatives discovered that Lowney had the remainder of the $340,000 that he had transferred to her less than 2 years earlier expecting that she would pay for his care with the money. Ms. Lowney had argued before the State Bar of California that she had been given the money as his girlfriend and not as his attorney.

The State Bar of California’s review department did not “buy” Ms. Lowney’s explanation. They found that she had been given the money as a fiduciary, and therefore committed an act of moral turpitude by taking the funds. The review department recommended that Ms. Lowney be disbarred.

I am not sure what the moral of this story is as events like this one do not happen every day. Very few estate planning or probate attorneys enter into relationships with their clients. Nevertheless, there are unscrupulous attorneys and we should all be cognizant of that fact.

While she has money in many industries, her primary source of wealth is mining. Her net worth is well over 20 billion dollars and some believe that her worth is close to 100 billion dollars which would put her ahead of Carlos Slim and Bill Gates and make her the richest person in the world.

Anyway, she is in a dispute with 3 of her 4 children concerning her trusteeship of a trust that was created by her late father on behalf of her children. Her children want to have her removed as trustee. It seems that she has delayed the vesting date of the trust. Ms. Rinehart has stated that her children are “manifestly unsuitable” to manage the trust.
It is always sad when families do not get along. The three eldest children obviously have made a decision that they want some money now, rather than waiting until their mother wants them to have it. In so doing, they are probably foregoing a lot of money down the road because it is very possible that their mother will not provide for them in her own estate planning. On the other hand, maybe they are fairly certain that their mother was unlikely to leave them much.

The other reason it might have been is for estate planning purposes. However, as an attorney admitted in California and not Pennsylvania, I am not exactly sure what it accomplishes. We have entered into the world of “portability” and assuming it continues to exist, a surviving spouse essentially gets to use what is left of the predeceased spouse’s exemption amount.

Regardless, it gives estate planning attorneys something to discuss and write about!

The United States Supreme Court, by the narrowest of margins, said the Texas probate court rather than a bankruptcy judge in California, had the authority to resolve the dispute concerning Mr. Marshall’s estate. Anna Nicole had not been included in Mr. Marshall’s will.

When someone marries, especially if they have children from a previous relationship, they should always amend their estate planning documents including their will and/or living trust to reflect the fact that they are married and to indicate what they intend their spouse to receive upon their death.

People often attempt to take shortcuts in the execution of premarital agreements. Shortcuts can invalidate the agreement. In California, premarital agreements have to meet certain requirements for them to be considered valid by the court in the event the marriage dissolves and one party seeks to implement the agreement.

The Agreement should be in writing. Husband and wife should each have been represented by a different attorney. Full and complete disclosure of all assets must be made by each spouse. Moreover, the Agreement should not contain provisions that are hugely unfair. If so, the entire Agreement is at risk of being thrown out.

The Agreement should be signed at least a week before the marriage; ideally it would be executed much earlier than that. Moreover, each spouse must have had time to read the Agreement and discuss with his or her attorney.

When people come to me to do their will or living trust, one of the questions I ask is whether they have a premarital agreement. It is possible that it will impact the way I draft their estate planning documents.

Essentially a 529 plan is a plan sponsored by a state in which someone saving for college invests in various investment options. Money from a 529 plan is to be used for tuition, fees, supplies and books. The money can also be used for room and board provided that the student is at least half time. As long as the money is used for the above, the gains will not be taxed.

The major advantages of the 529 Plans are that the donor retains control of the account; it is an easy way to save for college; the principal grows tax deferred and distributions for college costs are exempt from tax. Also, it is a way to get assets outside of your estate while continuing to have the ability to utilize the assets, subject to a penalty, if the need arises.

An estate planning lawyer does more than prepare trusts and wills. Often we are able to suggest things that are helpful to our clients right now!

When clients come to our office for estate planning – more and more are mentioning types of assets that had not even been invented 10 years ago. They are relatively easy to plan for, but like personal possessions it is important to have a plan in place for family harmony.

In a related vein, people need to think about how they wish to inform their successor trustee/executor of their various passwords. Once again, there are a variety of ways this can be accomplished. It just needs to be thought out!

As an estate planning attorney, it is my job to point out issues that may arise and help you determine the solution that works best for you and your heirs. A living trust and will sound so basic, but they can answer so many questions and well-drafted and thought out documents will assist in the legacy of the testator being preserved.

Obviously, when the insured dies, it is time for the insurance company to pay out on the policy. One can ask, how does the life insurance company know when the insured has died if the family does not notify the company? Conversely, some families might not be aware of the policy because the insured did not keep good records.

There is something called the Death Master File. It is a database of over 83 million deaths that is kept up by the Social Security Administration. The Department of Commerce sells both weekly and monthly updates to the File.

The John Hancock Company entered into a settlement with the state of California’s Controller’s office in April of this year dealing with some of these same issues. The insurance companies will start being more proactive. However, there is no reason that consumers cannot be in control.

It is important for all of us to maintain our files so that our successor trustee or executor or administrator will be able to ascertain all of our assets and maximize the value of the estate. When I meet with clients as their estate planning attorney to do their trusts and wills, I ask them about all of their assets. I am always concerned that an insurance policy whose premium has long since been paid will not be discovered.

Monday, May 16, 2011’s Los Angeles Times carried an article about Robert and Adrienne Westerbeck, a couple in Pasadena. The Westerbecks appeared to be the normal middle class couple. Mr. Westerbeck was a retired engineer who had attended Pasadena City College, loved animals and passed away in 2006 at age 89. Mrs. Westerbeck earned 3 degrees from USC taught music and passed away in 2010 at age 103.

The couple was childless and decided to leave their estate to their Alma matters. Pasadena City College received $4 million dollars which the Times reports is the largest single donation in the school’s history and will establish the Robert Westerbeck Scholarship Endowment. USC’s Thornton School of Music also received $4 million dollars and is establishing the Adrienne Westerbeck Endowed Music scholarship.

As someone who has prepared many living trusts and wills, I do not recall having a similar situation. I am looking forward to the time where a couple like the Westerbecks comes to my office to do something that will provide as much benefit to so many people.

The answer is “yes.” When one thinks about it, the answer is obvious. No one has the authority to transfer title to the house. Probate exists to determine legal ownership in an asset that was owned by an individual who did not have a beneficiary listed on the asset or have the asset titled in joint tenancy.

In the event that “Mom” had any creditors, the creditors need to be paid. Creditors need to be paid whether or not there is a probate. In the event the named executor does not petition the court to begin the probate proceedings, a creditor may petition the court.

Had the house been placed in a living trust, probate would have been avoided. It is my opinion that there will be less probates in the years to come because more people are doing trusts.