Articles

Lifting the curtain on estate planning

Michael Burstein, Burstein Law founding partner, authored an article published in the February 2, 2012 edition of the Daily Journal titled, "Lifting the curtain on estate planning." The article examined the causes of trust and estate litigation and outlined ways to contest a testamentary document. Mr. Burstein explained that when someone feels unfairly treated by the terms of a will or trust, they are likely to sue. Litigation can also arise when parents remarry, bringing up issues of which set of children should be favored by the will or trust. He stated that California also recently amended its laws regarding a bequest from a testator to caregiver, making it critical for attorneys to be familiar with Probate Code Sections 21350-21356. Wills and trusts can be challenged by showing lack of capacity, undue influence, duress, menace, fraud or mistake.

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The Caregiver Statute

Burstein Law founding partner Michael Burstein authored an article published in the November 2011 edition of California Lawyer titled, "The Caregiver Statute." The article discussed the rules a testator must follow in order to legally make a bequest in a will or trust to a non-related caregiver. Prior law required a testator to obtain from a second attorney a "Certificate of Independent Review" when making a gift to a caregiver. Mr. Burstein explains that, "Without a certificate, it has been extremely difficult to validate a gift to a caregiver because the determination requires 'clear and convincing' evidence above and beyond the testimony of the drafting attorney and the benefited caregiver." Amendments to the Probate Code took effect in January 2011 that allow the attorney drafting the will or trust to execute the certificate of independent review, but can also possibly make previously executed certificates signed prior to these changes invalid.

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Advance Health Care Directives

Under California law, you have the right to state your wishes regarding the types of health care you want (and the types you do not want). An “advance health care directive” lets your family, friends, and physician(s) know your health care preferences, including the types of special treatment you want or do not want at the end of life, your desire for diagnostic testing, surgical procedures, cardiopulmonary resuscitation and organ donation.

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IRA Legacy Trusts

Over sixty percent of inherited money is spent within less than three years. Until now, parents have generally left their tax deferred retirement accounts to their beneficiaries (usually their child or children) outright. There have not been any restrictions or parameters placed on the account. This frequently leads to unintended consequences.

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Powers of Attorney

A power of attorney is a legal instrument in which one person, the “Principal” delegates legal authority to another person, the “Agent” or “Attorney-in-Fact”. The Agent has the legal authority to make property, financial and other legal decisions on behalf of the Principal and in so doing, binds the Principal.

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The Probate Process in California

While most people engage in estate planning to avoid probate, sometimes it is unavoidable! Also, some people never engaged in estate planning. In California, the process has been created to as efficiently and fairly as possible, transfer assets to heirs/beneficiaries and creditors, if any.

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Wills and Living Trusts

Wills and living trusts are the foundation of estate planning. That being said, it is often useful to understand what they accomplish and what they cannot do. It is always helpful to have an understanding of their characteristics and attributes.

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