Palm Springs Law Blog

I handle estate planning for people who have a handful of assets, tons of assets, and everything in between. Other people have serious financial problems, and I help them file bankruptcy, so they can get a fresh start. And some folks are married or registered domestic partners and need me to file for a dissolution of the relationship. Whatever your fortune or misfortune, money and other assets are usually the focus of my work. Here are some notes and suggestions that can help protect what you already have, or regain a solid footing when you need it:

• Finding Money: You or a family member may have money waiting for you.

The LGBT community in the U.S. has made huge gains in human rights and equality in the past few years. This brief scorecard highlights some of the major victories:

• The federal government and 35 states plus Washington DC now recognize same-sex marriage
• The “Don’t Ask Don’t Tell” policy in U.S.

A new year is ahead of us, and some of these real-life questions and answers may help you make and keep resolutions that will pay off in the future:

Question:

Joanne and Marie are planning to marry in January. They know they need a marriage license from the county clerk. Is any other paperwork required before they can have their wedding ceremony?

Answer:

No other paperwork is required by the state or county, but there are several important issues that should be reviewed by the couple before they marry. When their status changes from single to married, many of their rights and responsibilities will change, too. Ownership of assets like a home, bank and investment accounts, and beneficiaries of retirement funds, insurance policies and annuities may need to change.
Read more . . .

We help lots of clients with their estate plans, crafting Wills and Trusts and other documents that are designed to protect people and their assets. A revocable living trust is often a good choice because it provides for the smooth transfer of property if the owner becomes incapacitated or dies. It usually avoids handling the estate through a probate court, which is a public process that can be very costly and time-consuming.

For every trust, there must be a trustee  -  the person who is authorized to manage and control all the property in the trust. In a revocable living trust, the initial trustee is usually the person who created the trust (called the grantor or settlor) – the owner of the property transfers everything into the name of the trust, and then controls it as the trustee. A great advantage of a trust over just having a Will is that a successor trustee takes over if that person becomes incapacitated or passes away, and there is no need to go to probate court to have someone appointed. The successor trustee continues to manage the property in whatever way the terms of the trust require.  

For single individuals, or partners who are not married or registered domestic partners, the choice for a successor trustee is usually a relative, partner or friend. These people agree to be the trustee if and when something happens. Although the estate in a trust may not need to be probated, California has strict legal requirements for the performance of trustees and the management of trust property. It is very important that a successor trustee understand the role he or she will play, and the rules that must be followed.

Trusts can range in value from a few thousand to many millions of dollars. As you might expect, a successor trustee’s time and effort will be proportional to the complexity of the estate. But the legal requirements are the same, regardless of the value of the estate.

Most important is the responsibility of the trustee as a fiduciary – managing the assets in the trust for the benefit of others. Heirs and beneficiaries are usually named, and the trust states how the assets of the estate will be divided up among them after all bills are paid and other requirements met. The trustee is responsible for conserving the assets, growing them, if possible, and delivering the assets to the beneficiaries.

Most trustees are ordinary folks who have no experience with managing estates for other people, so they usually retain an attorney to help them administer the trust. Lots of details must be handled over a period of months or years. An estate planning attorney is familiar with all of the duties spelled out in the Trust Administration sections of the California Probate Code, and can assist the trustee with all of those administrative tasks.

Whether the trustee has an attorney or not, it is essential to document everything that happens. Notices of the trust administration and copies of the trust document must be sent to all beneficiaries and heirs. The estate must be valued on the date of death, which may require professional appraisals of personal and real property. Liquid assets such as cash, bank accounts and money market funds must be transferred into a trust account. All valid bills, invoices and other creditor claims must be paid out of this account, along with any expenses for maintaining property or administering the estate.

Account statements must be kept in order and reviewed regularly to track the continuing value of the estate. Investments need to be managed to avoid or minimize any losses. If there is real property, it may need to be sold and the proceeds deposited into the trust account, or be distributed directly to beneficiaries before the trust administration is closed.

Once all debts have been paid, and all assets are in the form required for distribution, there is usually a final accounting. This details everything that happened to estate assets from the first valuation on the date of death to the current date. Unless they waive it in writing, all beneficiaries and heirs are entitled to an accounting at least once a year. If the trust administration continues into additional years, an interim accounting must be sent out at the end of each year, and the final accounting is done just before distributions are made.

If the trustee does not have an attorney, it is strongly recommended that a CPA or other accounting professional be retained to prepare the accounting and handle the filing of required personal and estate tax returns. Failure to follow tax laws can result in serious losses to estate assets and to beneficiaries and heirs. 

Finally, distributions are made according to the terms of the trust. The trustee will write checks on the trust account for cash bequests, and transfer other personal and real property as required. At this point, the trustee may write a check to himself or herself for serving as trustee and administrator of the estate, if the trust terms permit it. The amount will be stated in the trust, or if not, will be determined by local customary fees based on the trustee’s detailed records of hours spent and tasks performed.

The U.S. Supreme Court’s DOMA decision last year opened up over a thousand  marital benefits and obligations never before available to people in legal same-sex marriages. Among these is the right to file a joint bankruptcy with one’s spouse, just as straight married persons have always been able to do.

Let’s take a quick look at financial issues, bankruptcy, and how they affect same-sex couples:

In California, large numbers of bankruptcies were filed during the “Great Recession” of the past few years. Loss of assets in the financial market, loss of jobs, and underwater mortgages were the primary reasons. Now, as the economy improves, there is a substantial decline in bankruptcies, and prospects are good for most people. But, even for people who have managed their finances well over the years, a sudden job loss, major illness, accident, or failure of a small business can tip the balance and cause catastrophic money problems.

People with financial difficulties may start falling behind on car payments, credit cards, mortgages. Creditors start hounding them. Lawsuits may be filed against them to recover monies owed. When the courts issue default judgments, liens might be placed on their possessions, or salaries may be garnished by the creditors. Once debtors are trapped in this whirlpool of actions, it is likely that bankruptcy is the best way out. It is far too late to negotiate a way out of debt.

Bankruptcy can resolve your creditor issues, and give you a fresh start. If lawsuits are pending, foreclosures are imminent, or wages are being garnished, it is usually possible to stop these actions if a bankruptcy petition is filed. There are two types of bankruptcy to consider, and both can help rebuild your finances:

Chapter 7 gives you the chance to clear away most debts, through a “discharge” of debts by the bankruptcy court. Let’s say you have substantial debt, and not enough income to pay it off over a reasonable period of time. You have few or no assets (such as lots of equity in a home, multiple cars, large stock market investments, etc.) that the bankruptcy trustee can sell to pay off the creditors. Of course you may retain certain necessities (home, car, bank account, etc.) if they fall within the dollar limits of the exemptions allowed by the state or federal government. If you qualify, you file a Chapter 7 bankruptcy petition, and it takes about 4 to 6 months to discharge your debts. After that, you have a clean slate for the future.

Chapter 13 gives you the opportunity to continue paying off most or all debts over a 3 or 5 year period, under the protection of the bankruptcy court. In this case, you have sufficient steady income so you can create a plan to pay down the debts. The plan is administered by the bankruptcy trustee and you pay the trustee an agreed-upon amount of money each month. The funds are distributed to the approved creditors, and at the end of the plan period, you are essentially debt-free.

In both types of bankruptcy, certain debts such as most recent back taxes, student loans, alimony and child support, and some others are not dischargeable.

What should same-sex couples consider if they are thinking of bankruptcy? It is important to remember that some states don’t recognize same-sex marriage at all, but the federal rule allowing joint bankruptcy filing applies to legally married couples in every state. In states that do recognize same-sex marriage, the rule may also apply to registered domestic partners. California is a community property state, and registered partners have nearly all the same rights and obligations as married spouses. Joint petitions are allowed for both married and registered same-sex couples. But the rule does not apply to other domestic partners, even though they may have shared finances and property, and been together for many years.

How do you decide between filing a joint petition and individual petition? It can save time and money to file a joint petition. A single filing fee, lower attorney fees, one hearing instead of two, and other reasons make it an advantage over filing individual petitions. On the other hand, in a Chapter 7, being married could sometimes be a disadvantage. Whether filing a joint or individual bankruptcy, if both spouses have income and property, assets are totaled and there may be difficulty meeting the means test in either type of petition.

What if you are not married or registered? You can’t file a joint petition, but one or both of you can file individually. Joint debts will be eliminated for both partners if both file petitions. They will be discharged for only the personal liability of one partner, if only one files. The other partner will remain liable for the joint debts after the petitioner’s case is closed.

Whether you are married, registered or single, be sure to consult an attorney about your particular situation and the best way to file for bankruptcy. Doing it right will mean a new and refreshing financial future.

LGBT relationships run the gamut from simply living together (cohabitation) to marriage. Most couples form lasting unions, but there will be rifts in others that lead to a break-up, with the two individuals going their separate ways. Financial differences or problems are a common result of the failures, and disagreements can result in emotional crises, costly court cases, and judgments that neither party likes. A little careful planning can usually avoid most or all of the drama. Here are some of the things to consider:

Cohabitation

Many partners have been in long-term cohabitation relationships, because domestic partner registration or marriage weren’t available to them. For others, cohabiting is simply a casual, convenient and voluntary way to live together. They may not realize that there can be specific responsibilities the partners have under civil law. They may not be able to just walk away if they decide to separate.

Civil Court (as opposed to Family Court) handles disputes cohabiting partners might have over the terms of their relationship. Were promises made and not kept? A partner must prove a legal basis for a claim, such as an oral, written, express or implied contract. The Court will determine whether there was an enforceable contract, and if so, whether it has been breached by one or both of the parties. These lawsuits (popularly known as “palimony cases”) can be very expensive, take many years, and are difficult to win.

A Cohabitation Agreement is the best way to avoid financial disputes in the relationship. The partners identify their financial contributions to the relationship, and what they expect to take away from the relationship if they separate. If the partners don’t want a formal agreement (“It’s not romantic”; “We would never do anything to hurt each other”), then it is essential for each partner to maintain individual bank and investment accounts, not hold title to any assets in joint ownership, and not contribute any money toward the purchase of any asset (house, car, etc.) that is only in the name of the other partner. Never give up a job or other assets because a partner promises support, without a specific agreement in writing stating the promise and that the partner will not be left destitute if the relationship ends.

Marriage and Registered Domestic Partnerships (RDP’s)

In California, marriage and RDP’s are essentially identical. Under state law, spouses and registered partners have very clear and defined obligations to care for and support each other. They can’t just say goodbye and walk away if one of them has trouble with money, gets sick, or finds a new love-outside the union. If they want to end the union, they must file a petition for dissolution of marriage and/or RDP.

Family Court handles the dissolution process, and supervises all the steps that must be taken to ensure that the final judgment will be fair and equitable. The expense of dissolution and the emotional toll on spouses or partners is directly related to whether the couple can agree to an amicable split. Each must disclose detailed financial information to the other, including listing all assets and debts. If minor children are involved, there will be a comprehensive review of their current status and a determination will be made about the best plan for their future support and care. Pets, too, are often part of the picture, and their welfare must be carefully considered in a judgment. The dissolution process can take anywhere from a minimum of 6 months to a year or two, depending on how quickly the couple can reach agreement on all the terms.

Pre-marital or pre-RDP agreements are the best way to avoid future conflicts and disruption of personal lives when a marriage or RDP ends. Post-marital or post-RDP agreements may be created if the union has already taken place. Based on many of the dissolution cases we have handled, these agreements should be essential for any couple sincerely making a long-term commitment to each other. Couples can gain security or lose a fortune by choosing to enter or not to enter into such agreements.

Both Pre-marital/RDP and post-marital/RDP agreements must meet strict California legal requirements, including:

• The agreement must be made voluntarily, and not under fraud, duress, or undue influence

• Parties to the agreement must have legal capacity to enter into an agreement

• The agreement may not be unconscionable

• The agreement must not be against public policy

• Full disclosure of each party’s assets, debts and financial details must be made

• There must be independent legal counsel for each party, unless that right is

  properly waived in a separate writing (in our practice, both sides are always represented by independent counsel)

Every relationship faces an uncertain future. Agreements are roadmaps that make each relationship stronger and more secure. They provide clear understanding of each person’s financial status and obligations, and are the foundation for a couple’s future, no matter what happens.

It’s been a year since the landmark U.S. Supreme Court decision allowed federal recognition of same-sex marriages. The LGBT community is still rejoicing, and with great energy, is pushing ahead for equal rights in all the other aspects of our lives. 

What have I seen in my practice this year? Many committed same-sex couples getting married - some quietly, some with joyous celebrations, and a few with reckless and thoughtless abandon. Most have lots of questions about what the legal and financial effects of marriage will be. Those who have come to me for answers are eager to “do things right” and protect themselves and their future. Some who rush into marriage without thinking, or without understanding the consequences, may not make it into the future together.

Here are a few of the questions and issues I have worked with recently:

1. If we marry, does everything we own become community property?

   That depends on how you own the property before you marry, and how you

   agree to acquire new property after you marry. Do you already have joint bank

   and investment accounts? Do you own your house as joint tenants? Do you

   share legal title on your car? It is likely that these will be considered community property once you marry. If you are Registered Domestic Partners, you are already subject to community property rules, and marriage will not change that.

1. We own a checking account together, and furniture and things in the house, but we want to keep our investments and other property separate after we marry. I want to stay owner of our house. How can we do that?

   The very best way is to create a pre-marital agreement that clearly identifies each person’s separate property and the couple’s shared property. This agreement will also state who will own new property acquired by either or both after marriage. Both partners agree that all property will be covered under the agreement during the marriage. And if there should be a breakup in the future,

   there will be little or nothing to argue about when dividing up their assets and debts. A pre-marital agreement usually must be signed by both parties at least seven days before the date of marriage, so it is not something that can be put off until the last minute.

    

2. We just want to be sure that once we are married there won’t be any problems with everyone recognizing that we are now legally responsible for each other.

   You will have your marriage license, if anyone asks. But in most states in the U.S., this will be meaningless. In spite of federal recognition of same-sex marriages, they are only legal in 19 states and the District of Columbia right now. In all the other states, lawsuits are pending, but will not be quickly resolved. If you travel to other countries, most do not recognize marriage equality at all, and some criminalize homosexual behavior of any kind.

    

   For legal protection, married and unmarried same-sex couples should have all the important documents that spell out the rights of partners and spouses to make personal and medical decisions in case of emergency, incapacity or death.

   At a minimum, there should be an Advance Health Care Directive, and a means to provide this immediately to medical and other professionals in an emergency.

    

   You may not want to carry the actual documents around with you all the time, so there are some excellent organizations that store them for you electronically, and can provide them 24/7, any day of the year. We provide this service to most of our clients.  You are issued an emergency access card, the size of a credit card, to carry in your pocket or wallet. It provides the information necessary to access your documents right away. This can give partners and spouses a solid legal foundation for their relationship, and peace of mind, no matter where in the world they might be.

1. My old partner and I were Registered Domestic Partners (RDP) years ago, and then split up. Now I am going to marry my new partner. Will this be a problem?

   Unfortunately, yes. You are not free to marry a different person until your RDP is terminated. In nearly all cases, you are required to file for a dissolution (divorce), just as if you had been married. You must file a petition with the court, and go through the process of serving notice to your old partner, dividing up assets and debts, and agreeing to a settlement of your affairs that the court will find is fair for both of you. A dissolution can take anywhere from 6 to 8 months to a year or two, depending on the amount of cooperation between partners in getting all the paperwork filed, and any disagreement as to how to settle things.

    

You’ve heard enough about estate planning from your family and friends. You’re finally convinced that you need to do something to protect yourself, your partner, your property. But, you say, “I’ll be darned if I’ll pay a high-priced attorney to fill out a few forms”. You saw an ad for a complete estate plan package for $995.00  -  just go on-line, down-load all the forms, fill them out and the job’s done. You don’t have to meet with an attorney, think about it, or even leave your home to do all the estate planning you need. 

Or you heard about a “document service” where a paralegal provides you with several forms, you fill them out, and she puts them in a nice, neat file folder for you. Cheap, over and done with.

And guess what? Your local office supply store sells pre-printed legal forms. Pick them up, fill in the blanks, and you’re good to go. Why not take advantage of these or other low-cost shortcuts to peace of mind? 

There are very strong reasons why most people should avoid these methods. Wills and Trusts require careful thought and sound legal advice. Tax planning is an important part of it, too. An estate plan isn’t just an assortment of forms and documents. It is a map for the future that considers all the aspects of your present life, requires decisions about what might happen to you and your family, and is crafted so the plan will continue to evolve as time goes by.

A recent court case illustrates one major hazard of do-it-yourself documents: 

A Florida lady filled out an “E-Z Legal Form” when she made out her Will. She wanted to leave all of her property to her sister, then to her brother, if her sister predeceased her. The sister did die first, and the brother claimed he was entitled to the entire estate. But the pre-printed Will stated that all “listed” items should go to the brother. Not all of the lady’s assets were listed. And the Will did not have a residuary clause (and not even any room on the form to add such a clause) providing for the disposition of property not listed in the document.

Two of the lady’s nieces (children of another brother, already deceased) brought action. After lengthy arguments on both sides, the court decided that the listed items must go to the brother, as the Will provided, but the unlisted assets must pass outside the Will, to the nieces, who were the next heirs in the line of succession.   Although it may have been the lady’s intent that her brother inherit all of her estate, the Will did not say so, and it did not provide any way for him to claim the unlisted items. Concurring Justice Barbara Pariente commented, “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage ‘penny-wise and pound foolish.’”

Pre-printed forms can’t possibly include all the language needed to cover the wide range of possibilities and probabilities that are part of our everyday lives. There is no single Will, Trust, Power of Attorney or any other pre-printed form or pre-written format that can meet the needs of everyone. How would you know if some essential language is missing, or certain statements can cause problems, or your intent is not truly reflected in the document? How do you know what you don’t know?

Attorneys have studied the laws (and the court cases) and get to know you and all the details of your particular situation. They recognize the hazards and pitfalls of missing or incorrect language, and draft comprehensive documents that fit you like a glove. You are not a John Doe, and your estate plan shouldn’t be, either.

For those of us in the LGBT community, it is even more crucial that our plans cover the  unique family, health and property issues we face because we still lack equality under most state and some federal laws. A properly crafted estate plan gives us the visibility and legal standing that is so essential to protect our families and our assets. Our special needs require special planning.

There should be ads and articles in the newspaper and magazines cautioning people against using pre-printed legal forms. But attorneys often chuckle about this. They don’t plan to run any ads. They get a lot of business from clients who tried the do-it-yourself approach and found the documents unusable when they were needed. Folks who wanted to save a little money bought a lot grief for themselves or their families.

In the court case, the lady may have tried to save herself a few dollars by filling in the blanks, but in the end her estate had huge attorneys’ fees and two years of wasted time. The nieces, of course, were delighted with the E-Z Legal Form she used. They came out over $100,000 ahead. Definitely not the result the lady wanted.