San Jose Attorney - Almaden Times Articles

Listing Your "Heirs" May Not Be As Easy As It May Seem

 
 
This week’s question: My wife and I have a living
trust, wills, and related documents, but I am curious about this question. If
I were to die, just who are my heirs? Where would my property go? Where can I
go for more information about this topic?
 
/s/Henry H.
Almaden Valley
 
Dear Henry—
 
Thank you for emailing in that question. And it’s
good to know that you and your wife already have a living trust, wills, and
related documents. You should be in good shape legally if something were to
happen to you.
 
Listing your heirs really depends on a lot of things. First
of all, you would want to look at your legal residence, since many state laws
are different. Let us assume you live in California when you die.
 
By the way, if a person dies without a will, we say that the
person died “intestate”. 
 
Next, you would look to see your marital status. If you are
married, your surviving spouse has certain rights if you die without a will. 
Some of these rights are stated in California Probate Code §6401.
 
If a person dies as a single person, his or her property
usually passes to the decedent’s “issue”, or children, in
equal shares, under California Probate Code §6402(a), and if there is no
surviving “issue”, to the decedent’s parent or parents equally.
 
If there is no surviving “issue” (children) or
parent, then to the issue of the parents or either of them, i.e., brothers and
sisters of the decedent, under Probate Code §6402(c).
 
Of course, there are provisions in the law for more remote
relationships, just in case that becomes necessary. One can envision where it
may be necessary to pass property interests to great grandchildren, or even
first, second, or third cousins thrice-removed. Of course, the decedent may
not have ever met these people.
 
A colorful chart showing some of these relationships can be
found by going online to MyStateWill.com. You can readily see various
“Degrees of Kinship by the Rules of Civil Law” prepared by the
author of that work. A note of caution is needed, however, and that is to
always determine what state the information applies to, since each state has
different laws when it comes to trusts, wills, and related issues.
 
Another note of caution for our Almaden Times readers: you will always want to consult with
your own attorney to see how these general legal principles may or may not
apply to your particular situation. It seems like for every rule there are
numerous exceptions, and only your own personal attorney can advise you
properly.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. 
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502, telephone
at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite
200, San Jose, CA 95120. Your matters are personal and private, so of course,
he will not disclose your identity or any details about your situation. Mr.
DeVries writes this column to provide you with general information about
important legal matters affecting California residents—not to give you
legal advice about your specific matter. No attorney-client relationship is
created by these articles. The law is complex and constantly changing and
varies from state to state. So you should consult an attorney before taking
any action that would affect your personal or business matters.
 
 

College Student Is Thinking About Becoming A Lawyer

This week’s question:
 
I am a freshman in college and I am thinking about becoming
a lawyer. What do I need to do to become one? What are the educational
requirements? How can I learn more about what lawyers do?
 
/s/Andy A.
Almaden Valley
 
Dear Andy:
 
Thanks for emailing in that question, Andy. This is a topic
that is near and dear to my heart, as you might imagine. I have been doing
this work for over 41 years now and still thoroughly enjoy it.
 
You can learn a bit more about what lawyers do, the
educational requirements, and other topics by talking with a lot of people and
doing a lot of reading about this field of work. The more you know, the better
your decision might turn out to be.
 
A very good source of information is the State Bar of
California. In this state, all practicing attorneys must be a member of the
State Bar. Some states have a voluntary bar association, but here in
California it is mandatory.
 
The State Bar publishes several excellent consumer-oriented
pamphlets, one of which is entitled, “How Do I Become a Lawyer”. It
is just a top-notch source of information that you might find interesting and
informative.
 
Some of the topics in the pamphlet include, (1) What do
lawyers do? (2) What are the requirements for admission to practice law in California (3) How do I
prepare for law school? (4) What is the LSAT? And (5) Where can I find out more
about becoming a lawyer?
 
The more you read and the more you learn by talking with
others, the better position you will be in to determine if this might be a
field of work for you. It seems to me that there is a vast range of career
options available for one with legal training.
 
As is stated in the State Bar pamphlet, the pamphlet
summarizes the general requirements for becoming a California lawyer. It also
touches on the many opportunities available to those who pursue a legal career.
 
This field may not be for you, and becoming a
lawyer—and practicing law—is not easy, but a career is law can be very
rewarding.
 
You can read the pamphlet “How Do I Become a
Lawyer” online by bringing up the California State Bar web site and
entering pamphlets@calbar.ca.gov. 
Or, you can contact The State Bar of California, Office of Media and
Information Services, 180 Howard Street, San Francisco, CA 94105-1639. Their
telephone number is: 415-538-2000, and they may be able to mail you a copy of
the pamphlet at little or no cost.
 
Best wishes in your career path, Andy.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. 
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502,
telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden
Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private,
so of course, he will not disclose your identity or any details about your
situation. Mr. DeVries writes this column to provide you with general
information about important legal matters affecting California
residents—not to give you legal advice about your specific matter. No
attorney-client relationship is created by these articles. The law is complex
and constantly changing and varies from state to state. So you should consult
an attorney before taking any action that would affect your personal or
business matters.
 
 
 
 

Living Trusts Generally Do Not Require A Separate Tax I.D. Number

 
 
This week’s question:
 
My husband and I are thinking about drawing up a living
trust and related documents but are concerned about the need for a separate tax
identification number for the trust. We would both be trustees of our family
trust. Can you shed some light on this topic?
 
/s/Jenny J.
Almaden Valley
 
Dear Jenny—

You have raised a very good question, Jenny. You must be
concerned about the possibility of your trust needing separate annual fiduciary income tax returns, state and
federal, with accompanying cost and nuisance factors.
 
Let us assume for the sake of discussion that you do in fact
have a “living trust”. This is also called a “revocable” trust. (A few months ago
an article appeared in this column pointing out the differences between
revocable and irrevocable trusts
which can be seen on my website.) The revocable trust or living trust is also
known as a “grantor” trust.
 
You can think of the “grantor” of the trust as
the “creator” of the trust, you and your husband. Other terms
often used are the “settlor” of the trust or
“trustor”. Sorry about all of this redundancy and possible
confusion, that’s just the way it is.
 
Internal Revenue Code rules and Treasury Regulations
generally provide that so long as the trust is a “grantor trust”
and all income is distributed to or for the benfit of the grantor(s), no
federal tax i.d. number (TIN) is required while the grantor, or at least one of
the two grantors, serves as Trustee or Co-Trustee. If that is the case, the
trust uses the grantor’s personal social social security number of either
grantor as its TIN.
 
Thus, under the Treasury Regulations, if you and your
husband have a typical living trust, you would continue to file your usual
state and federal tax returns each year and report all income under your own
social security numbers. In a sense, the trust is treated as one person for
income tax reporting purposes.
 
As long as you and your husband are both living and filing
your normal tax returns, then usually there would be no requirement to file
separate state and federal fiduciary tax returns for the trust.
 
You will want to contact your own attorney, however, if part
or all of the trust becomes irrevocable, through death or other means, or if
someone else becomes trustee of your trust. Other exceptions apply too, for
example, if the trust conducts a business as a sole proprietor. In those
situations, a visit with your own attorney or CPA is essential.
 
Thank you for emailing in your question, Jenny. I think our
Almaden Times readers will
appreciate it.
 
/s/Donald J. DeVries
Almaden Valley
 
 
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. 
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502, telephone
at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite
200, San Jose, CA 95120. Your matters are personal and private, so of course,
he will not disclose your identity or any details about your situation. Mr.
DeVries writes this column to provide you with general information about
important legal matters affecting California residents—not to give you
legal advice about your specific matter. No attorney-client relationship is
created by these articles. The law is complex and constantly changing and
varies from state to state. So you should consult an attorney before taking
any action that would affect your personal or business matters.
 
 
 
 

Where To Store Your New Living Trust And Will Documents

This week’s question:
 
My wife and I are thinking about a new living trust, wills,
and other documents, including a durable power of attorney for asset management
and advance health care directive. It sounds like the volume of paperwork is
incredible! My question is a simple one: where do we store our documents once
they are all signed—at the attorney’s office?
 
/s/Larry L.
Almaden Valley
 
Dear Larry:
 
You have emailed in a very common question, Larry. At the
conclusion of most projects dealing with living trusts, wills, and related
documents, clients want to know about where to store the papers.
 
I think it is safe to say that practices vary a little bit
from office to office. Our practice has been for many years that we do not
like to retain original documents. We typically provide the originals and two
copies to the clients and we retain a copy of the signed documents for our
file.
 
With the advent of good photocopiers many years ago, there
is really no need for us as attorneys to retain the originals, and under the
California Evidence Code, a copy can usually be as good as the original.
 
We usually recommend that the clients place the original
documents in a very safe place, like a safety deposit at the bank and that they
retain at least one of the sets of copies at home for ready-reference.
 
A question that often arises is whether to give a copy to
the family, such as adult children or the Successor Trustee of the Trust and/or
Executor of the Will. We have found that this is a personal decision that
varies from family to family. Some clients like to keep all documents to
themselves, so to speak, and others like to provide copies to key individuals.
 
At the very least, key individuals, like the Successor
Trustee of the Trust and the Executor of the Will need to know where to find
the documents in case the need arises, like in a certain area of the home. 
Sometimes the key individuals are named and sign on bank deposit access cards
on file at the bank so as to have ready-access to the important documents in
times of need.
 
Of course, a copy of the Advance Health Care Directive
should be provided to the person’s doctors and hospitals, just in case
the need arises. In fact, hospitals are now required to ask if patients being
admitted have such a document. And for good reason.
 
Another good reason for clients to have copies of their
documents at home is for periodic review of them just to make sure they have
their legal papers in order. It is good to review them at least once a year if
not more frequently.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times articles
since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If
you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502,
telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden
Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private,
so of course, he will not disclose your identity or any details about your
situation. Mr. DeVries writes this column to provide you with general
information about important legal matters affecting California
residents—not to give you legal advice about your specific matter. No
attorney-client relationship is created by these articles. The law is complex
and constantly changing and varies from state to state. So you should consult
an attorney before taking any action that would affect your personal or
business matters.
 
 
 

LEGAL MENTAL CAPACITY IS A RATHER TRICKY CONCEPT-PART 1 OF 2 PARTS

 
This week’s question:
My husband is getting up in years
and I am not sure he has the legal ability to sign a Living Trust. He can be
so forgetful, it’s scary. He still knows me, our children and our
properties, but how can I tell if it is OK for him to sign legal documents?
/s/Mary M
Dear Mary:
This is a very important topic,
Mary, and one that is not easily summarized.
Let me begin by mentioning a few
important California Probate Code sections, in this the first part of a
two-part series.
§810 states that there shall exist a
rebuttable presumption affecting
the burden of proof that all persons have
the capacity to make decisions and to be responsible for their acts
or decisions. So, this is one of many factors to look at.
 
Next, a person who has a mental or physical disorder may still be capable of
contracting, conveying, marrying, making medical decisions, executing wills or
trusts, and performing other actions.
 
Also, a judicial determination that
a person is totally without understanding, or is of unsound mind, or suffers
from one or more mental deficits so substantial that, under the circumstances,
the person should be deemed to lack the legal capacity to perform a specific
act, should be based on evidence of a deficit in one or more of the person's mental functions rather than on a
diagnosis of a person's mental or physical disorder.
 
Of course a doctor may need to help with this assessment. 
Deficits in mental functions are defined in §811. Deficits in mental functions
include alertness and attention, including, but not limited to, the level of
arousal or consciousness and orientation to time, place, person, and
situation. 
 
Other issues include information processing, including, but
not limited to short- and long-term memory, including immediate recall, the
ability to understand or communicate with others, either verbally or otherwise
and recognition of familiar objects and familiar persons.
 
In looking at legal mental capacity, one would be interested
in the ability to understand and appreciate quantities, the ability to reason
using abstract concepts, and the ability to plan, organize, and carry out
actions in one's own rational self-interest.
 
Of course, the ability to reason logically is important.
Deficits in these functions may be demonstrated by the presence of severely
disorganized thinking, hallucinations, delusions and/or uncontrollable,
repetitive, or intrusive thoughts.
 
Other deficits in mental functions could be listed, and the
court may take into consideration the frequency, severity, and duration of
periods of impairment.
 
Thanks for writing in, Mary. Be on the lookout for Part 2
of this topic in about two weeks.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the
Almaden Valley. Past Almaden Times
articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. 
If you would like him to answer your question in his next Almaden Times column, you can reach him by
email at don@almadenvalleylawyers.com,
with “Almaden Times” in the subject line, fax at (408)268-6502,
telephone at (408)268-9500, or mail at DeVries & Horowtiz, 6475 Camden
Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private,
so of course, he will not disclose your identity or any details about your
situation. Mr. DeVries writes this column to provide you with general
information about important legal matters affecting California
residents—not to give you legal advice about your specific matter. No
attorney-client relationship is created by these articles. The law is complex
and constantly changing and varies from state to state. So you should consult
an attorney before taking any action that would affect your personal or
business matters.