San Jose Attorney - Almaden Times Articles

Donating Body Organs May Be A Good Thing To Do

This week's question: Although I am a little squeamish about this topic, I am thinking about donating some body organs at my passing. Just how does that work? What if I change my mind? How do I know that the organs will be used properly and not on the black market? How can I learn more about this topic?

/s/Rachael R., Almaden Valley

Dear Rachael: You have emailed in some great questions, Rachael. And I agree that this topic can be a little squeamish for some of our readers but it is a very important topic too. Several years ago one of our family friends received two body organs from an anonymous donor. I am sure our friend is alive today because of the priceless donation. Without those organs, I am certain he would not be with us today.

Let's try to address your questions one by one. First of all, you can specify which organs you wish to leave by stating that in an advance health care directive in California. This is allowed by Probate Code §4701. (That little § sign is legal shorthand for "Section".) I

t is also possible to make organ and tissue gifts by going online to: www.donatelifecalifornia.org. The home page of that web site states that the site allows you to sign up online to be an organ and tissue donor in California, and get this: "Your organ donation could save the lives of eight people, and your tissue donation enhance the lives of another 50 people." This is incredible!

You might also want to take advantage of the organ and tissue donation program when you apply for or renew your driver's license. A small sticker is then placed on the back of your driver's license to indicate that you are in fact a donor.

You can also make organ gifts in accordance with the Uniform Anatomical Gift Act, adopted in California as part of the California Health and Safety Code. I will use the shortened term "Uniform Act" from here on in this article. The Uniform Act has been adopted by 40 states.

Another way to make the gift of life possible by organ donation is during a terminal illness or injury of the donor, by any form of communication that clearly expresses the donor's wish. This would be in the presence of at least two adults, at least one of which is a disinterested witness. If the gift is made verbally, the witnesses can then memorialize the communication in writing under §7150.20 of the Uniform Act.

You can see that you do not need to have a formal legal document prepared by your attorney in order to be an organ donor. In California, the anatomical gift program is administered by the State Department of Health Services. It has oversight and regulatory authority with respect to the implementation of the Uniform Anatomical Gift Act.

A person could also document his or her organ gift by means of a tape recording in his or her own voice. If you change your mind about organ donations, you may amend or revoke the gift in one or several ways, including a signed statement, an oral statement made in the presence of two individuals, by means of a tape recording in the donor's own voice, or by any form of communication during a terminal illness or injury addressed to a physician or surgeon.

Under §7153 of the Uniform Act, only certain designated institutions or persons may become donees (recipients) of anatomical gifts and for clearly proper purposes. In all cases, if a person states in a health care directive that he or she does not wish to donate organs, those wishes must be honored. Almaden Times readers can read the entire Uniform Act if they wish by going to their favorite search engine and entering: "Health and Safety Code Section 7150-7156.5".

As always, you will want to review this material with your own attorney to see how the various provisions may or may not apply to your own particular situation.

/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.

You Want To Avoid "Intestacy" In Your Estate Plan

This week's question: I have been thinking this through for months, but I cannot decide who will inherit my estate. Maybe I should do nothing and let my heirs fight over it. What if I die without a will or a trust?

/s/Anne A., Almaden Valley

Dear Anne: You haven't told us much about your family situation, Anne, so it is a little hard to say how things will go. But it is safe to say, I think, that passing on without a will or a trust is probably the worst thing to do.

Let me explain. If you die without a will or a trust, in our jargon we say that you died "intestate", i.e., without a will. If that is the case, the State of California will decide exactly how your estate will be distributed. No exceptions.

My Black's Law Dictionary, Seventh Edition, defines "intestate" as follows: "Of or relating to a person who has died without a valid will." Also, "Of or relating to the property owned by a person who died without a valid will." So, if you die without a will, someone needs to dispose of your property, and that "someone" is the Superior Court of the State of California if you die while a resident of this state.

You would not be the first person to die without a will in this state, and you won't be the last, so the state has set up rules to follow as to how to distribute your property. These rules are found in the California Probate Code.

The rules of intestate succession were discussed in a California case recently. The case is entitled, Estate of Doralee Verna Bekel, and it was decided on May 20, 2009. It involved an estate that was pending in Kern County and the appeal was heard in the Fifth Appellate District Court. In that case, Doralee died without a will. Evidently, Doralee did not have a surviving husband, children, parents, or siblings.

Maureen, the Estate Administrator, limited distribution to the children of the predeceased first cousins, i.e., first cousins once removed. Kathleen represented other remote heirs, i.e., the late Doralee's first cousins twice removed and thrice removed. She filed an appeal to the trial court's ruling, since she was unhappy with the Administrator's decision that was supported by the Kern County Superior Court. It turned out that Kathleen was right.

The Court of Appeal held that surviving issue include all lineal descendents of all generations. Therefore, the estate had to be divided into as many shares as there were first cousins who survived the decedent, Doralee, and first cousins who predeceased Doralee but left surviving issue of any generation. Exciting stuff? Not really. Rather boring when you stop and think about it. And I'm sure most of those distant relatives never even met Doralee or even heard about her. (But they undoubtedly welcomed a check in the mail.)

How could that unfortunate but true story have been avoided? By Doralee having a simple will or trust drawn up. Had she done so, the whole mess would have been avoided, Doralee's assets would have been distributed exactly as she wanted and directed, and expense and stress would have been minimized. You can read the case for yourself by entering the name of the case in your favorite search engine, Estate of Doralee Verna Beckel.

If you do so, remember to consult with your own attorney as to how this or any other case or statutory provision may apply or may not apply to your particular situation. Only your own attorney can guide you properly in these matters. I hope that this answers your question, Anne. If I were you, I would have a will or living trust drawn up today. Perhaps your attorney can help you do just that. Best wishes in that endeavor.

/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.

You Will Want To Make Changes To Your Trust With Care

This week's question: My wife and I signed our living trust a couple of years ago and we want to make a slight change. Can we just write on the trust with dark ink and both sign or initial the change? Our lawyer might charge an arm and a leg for a simple change.

/s/Rex R., Almaden Valley

Dear Rex- I hear what you are saying, Rex. You want to make a change to your trust and would rather avoid any legal expense in doing so. That very question was involved in a recent court case that you might find interesting. The case was entitled Cory v. Toscano, and it was decided June 8, 2009. It originated in Fresno County Superior Court.

In that case, Louie signed his revocable living trust on September 30, 2005. Later, he signed two amendments that were presumably satisfactory and not in issue in the case. However, on October 11, 2005, Louie wrote in his own handwriting two interlineations on the trust agreement, "25% of" and "10.11.05", evidently the date of the handwritten change. He also evidently initialed the change by adding his initials "LF" over the number "25".

Louie died on May 11, 2006, after giving one of the parties a copy of the trust agreement with his handwritten change. The effect of Louie's change apparently was that Cory would receive only 25% of the balance remaining from the sale of 28.5 acres of real estate, instead of 100% of the entire parcel of property. Since a sizeable sum of money was evidently involved, one of the beneficiaries of the trust became quite unhappy and filed court proceedings concerning Louie's handwritten change. (If a beneficiary stands to lose a sizeable sum of money from a questionable change, it has a tendency to increase the possibility of a law suit.)

The case went to court in Fresno, where the issue presented was whether Cory's Petition for Declaratory Relief would constitute a contest and thus violate the no-contest clause in the trust. Under certain circumstances, filing such a Petition for Declaratory Relief can be done. The legal result was that the Superior Court ruled that the proposed petition did not violate the Trust's no-contest clause on the ground that a challenge to an instrument other than the instrument containing the no-contest clause is not a contest under the Probate Code. And the Court of Appeal for the Fifth Appellate District affirmed the trial court.

The practical result was that both sides presumably spent substantial sums of money fighting over a simple change to a trust instrument that more than likely could have been avoided. Probably Louie was thinking that he didn't want to spend any more money on legal fees and he could save time and money by just making some simple notations on his trust. Of course, the case was probably far from over, since the ruling by the court was the first step in the process-to determine whether bringing such a petition would constitute a violation of the no contest clause.

Since the court held that the challenge to the handwritten notations on the trust did not violate the no-contest clause stated in the trust, the parties after phase one of the case would need to go back to court for further court decisions and thus incur even more stress and legal expense.

It seems to me that the moral of the story is to think twice about making handwritten changes on important legal documents, like trusts and wills. A better decision might well be to contact your own attorney for good drafting for all changes or amendments you have in mind. Chances are it will be money well spent. And hopefully it will not cost you "an arm and a leg."

You can read the case for yourself by going online and entering Cory v. Toscano in the box of your favorite search engine. I did it with Google and it was on my monitor in 2/10 of a second-and from the Court of Appeal web site without any distracting ads or other popups.

As always, you need to consult with your own attorney to see how the case may apply or may not apply in your specific situation. Good luck with your trust change, Rex. I hope it all works out for you.

/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.

Substance Abuse Provisions May Work For Your Living Trust

This week's question: My husband and I are thinking about drawing up a living trust and leaving some money to our grandchildren. This money will be managed by our son, our Successor Trustee, after we are gone, while the children are under 25. With so many children getting into illegal drugs these days, is there any way we can deal with that unfortunate possibility?

/s/Victoria V., Almaden Valley

Dear Victoria: You and your husband are smart to think about your living trust and some of its provisions. And you are wise to consider possible substance abuse as it may affect your grandchildren in the future. It is very workable to have some paragraphs in your living trust that deal with substance abuse. The Successor Trustee, after you and your husband are gone, will manage the money set aside for your grandchildren, including the enforcement of the substance abuse provisions.

Here are some ideas that may be helpful, not necessarily in any order of priority. If the Successor Trustee, also called "the Trustee", reasonably believes that a beneficiary of the trust routinely or frequently uses or consumes any illegal substance so as to be physically or psychologically dependent upon that substance, or is clinically dependent upon the use or consumption of alcohol or any other legal drug or chemical substance that is not prescribed by a board certified medical doctor or psychiatrist in a current program of treatment supervised by such doctor or psychiatrist, then certain provisions apply.

Those provisions would also apply if the Trustee reasonably believes that as a result the beneficiary is unable to care for himself or herself, or is unable to manage his or her financial affairs. In those events, all mandatory distributions (including distributions upon termination of the trust) to the beneficiary, all of the beneficiary's withdrawal rights, and all of the beneficiary's rights to participate in decisions concerning the removal and appointment of Trustees will be suspended.

In those events, the following provisions will apply: (1) The Trustee may request the beneficiary to submit to one or more examinations (including laboratory tests of bodily fluids) determined to be appropriate by a board certified medical doctor and to consent to full disclosure to the Trustee of the results of all such examinations. The Trustee shall maintain strict confidentiality of those results and shall not disclose those results to any person other than the beneficiary without the prior written permission of the beneficiary. The Trustee may suspend all distributions otherwise required or permitted to be made to that beneficiary until the beneficiary consents to the examination and disclosure to the Trustee.

(2) Treatment and cost thereof. If, in the opinion of the examining doctor, the examination indicates current or recent use of a drug or substance as described above, the examining doctor will determine an appropriate method of treatment for the beneficiary. For example, counseling or treatment on an in-patient basis in a rehabilitation facility may be arranged that is acceptable to the Trustee. If the beneficiary consents to the treatment, the Trustee shall pay the costs of treatment directly to the provider of those services from the suspended distributions.

(3) Resumption of Distributions. The Trustee may resume other distributions to the beneficiary (and the beneficiary's other suspended rights will be restored) when, in the case of use or consumption of an illegal substance, examinations indicate no such use for 12 months. Distributions may also resume when the Trustee in his or her discretion determines that the beneficiary is able to care for himself or herself and is able to manage his or her financial affairs.

(4) Disposition of Suspended Amounts. Your living trust may also go on to state that when other distributions to the beneficiary are resumed, the remaining balance, if any, of distributions that were suspended may be distributed to the beneficiary at that time. Also, if the beneficiary dies before distribution of those suspended amounts, the Trustee shall distribute the balance of the suspended amounts to the persons who would be the alternate beneficiaries of that beneficiary's share (or beneficiaries through the exercise of a power of appointment) as otherwise provided in the testator's Will or the Trust Agreement.

(5) Exoneration. Your living trust may also have provisions that protect the Trustee for any actions of the beneficiary and that protect any doctor employed by the Trustee.

(6) Tax Savings Provision. Special technical provisions would also be included that pertain to mandatory distributions and/or withdrawal rights that may be required for tax purposes.

So there you have some ideas, Victoria. Although some of the wording is a bit formal and perhaps too much jargon is used, this is the kind of material you might be thinking about for your new living trust. Of course, you will want to discuss this with your own attorney in some detail. Only he or she can guide you in the right direction.

/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.

About How To Modify That Revocable Trust

This week's question:

I have been doing some reading about Living Trusts. It seems to me that they have many advantages when it comes to estate planning, like avoidance of probate and minimizing income taxes. I just have one concern. Exactly how does a person like me cancel the trust if I change my mind? After all, it's best to keep one's options open because of changing times and circumstances.

/s/ Kevin K., Almaden Valley

Dear Kevin- It certainly is best to keep one's options open because of changing times and circumstances. And that's one of the many positive aspects of a Living Trust or revocable inter vivos trust. By the way those terms are used interchangeably.

The term "revocable" by its very nature implies that the trust is capable of being changed or even cancelled (revoked) at any time. Most trusts are changed very little as the years go by, but it is possible to change or revoke the trust entirely if certain steps are taken. You may want to see your own attorney for advice in this area.

In fact, California Probate Code §15400 provides that a trust is presumed to be revocable. That law provides:

"Unless a trust is expressly made irrevocable by the trust instrument, the trust is revocable by the settlor. This section applies only where the settlor is domiciled in this state when the trust is created, where the trust instrument is executed in this state, or where the trust instrument provides that the law of this state governs the trust."

The term "settlor" is basically the same as "creator" of the trust. More jargon: the "trustee" is essentially the money manager of the trust and the "beneficiary" is the person or entity that is named to receive the gift.

Now, how does a person revoke a revocable trust? Almaden Valley residents would need to follow California Probate Code §15401. That provision entitled "Method of Revocation by Settlor" states:

"A trust that is revocable by the settlor may be revoked in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor.

If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph. If the trust has two settlors, such as a husband-wife trust, how can the trust be revoked? The answer to that question is found in §15401(b):

"Unless otherwise provided in the instrument, if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor, except as provided in §761 of the Family Code [dealing with community property]."

(By the way, if you already have a Living Trust and you are involved in marital dissolution or separation proceedings, you will want to consult with your own attorney to review the interrelationship of trust law and family law issues if you are considering a revocation.)

These principles were discussed in a 2008 Ventura County case in the Court of Appeal for the Second Appellate District. The case is entitled Joette Masry, as Trustee v. Louis Masry as Cotrustee. In that case, the court held that the revocation of the trust was proper, the revocation provision in the trust was not explicitly exclusive, and that the method of revocation complied with Probate Code §15401, quoted above.

You can read the entire Masry v. Masry case for yourself if you so desire. You can bypass incessant advertising by entering the California Courts of Appeal in the search box. Then enter Second District followed by "Searchable Opinions 1850 to present." After you agree to the terms of the web site, enter California Courts and Masry v. Masry.

One can also read about the California Probate Code provisions discussed above. Once again, if you want to avoid a barrage of advertising and "support" links, go to the California Courts of Appeal web site mentioned above. After you agree to the terms of the web site, enter "Read Unannotated California Codes", followed by California Probate Code and then 15401.

If the above steps work, the information should be on your monitor in about .2 seconds.

As always, you will want to review this information with your own attorney to see how these provisions may or may not apply to your own particular situation.

/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.

"Polst" Comes To California To Assist Consumers

This week's question: I have been reading your column for several years and it looks like it may be time for another one based on new laws coming into play for us consumers. Have you seen anything of interest for 2009?

/s/Brenda B., Almaden Valley

Dear Brenda- First of all, thank you for your interest in this column. That is appreciated and not taken for granted. As a matter of fact, I have seen several new laws of interest to California consumers that take effect with the new year. Unfortunately, space in this column does not allow for a full discussion of very many. So let me focus on just one new law for 2009 in the field of estate planning, living trusts, and Advance Health Care Directives.

On August 4, 2008, California Governor Arnold Schwarzenegger signed Assembly Bill (A.B.) 3000 into law. This bill amends the California Probate Code to add a recognition of Physician Orders for Life-Sustaining Treatment (POLST) forms to the current recognition of "do not resuscitate" (DNR) forms. In short, the Physician Orders for Life-Sustaining Treatment (POLST) program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by health care professionals to honor these wishes.

This new law does not require the use of a POLST form, but describes the requirements if one is used. According to the California Coalition for Compassionate Care web site, the POLST form is a physician's order that outlines a plan of care reflecting the patient's wishes concerning care at life's end. The POLST form is voluntary and is intended to: * Help the doctor and the patient discuss and develop plans to reflect the patient's wishes * Assist physicians, nurses, health care facilities, and emergency personnel in honoring a person's wishes for life-sustaining treatment.

You can access the California Coalition for Compassionate Care web site by going to: www.finalchoices.org . There you or your doctor can download the 2009 California POLST form and even learn how to copy and print the form on 65# cover pulsar pink paper stock. Wausau Pulsar Pink card stock is available online and at some office supply stores. It is important to use this specific color of paper so that the form can be photocopied and faxed. When you download the form, you can see that it is indeed entitled "Physician Orders for Life-Sustaining Treatment (POLST)".

There are four main areas. Area "A" deals with cardiopulmonary resuscitation (CPR). One can check either "attempt CPR" or "do not attempt resuscitation/DNR (allow natural death). Area "B" is entitled "medical interventions" and you can check one of three boxes. One box is for "comfort measures only". The second box to check is "limited additional interventions", and the third box is "full treatment". Area "C" on the "POLST" form is "artificially administered nutrition" where you can make one of three choices. And then area "D" on the form is for signatures and a summary of the medical condition.

The POLST form directs a health care provider as to the resuscitative and life-sustaining measures selected by a patient concerning the end of life, and requires health care providers to treat individuals in accordance with their POLST across all health care settings, beginning on January 1, 2009. The POLST form is provided by the health care provider and is based on the patient's wishes and medical indications. It must be signed by a physician and by either the patient, only if competent, or the patient's legally recognized health care decision maker, if the patient lacks capacity or the patient has designated an Advance Health Care Directive that gives the decision maker authority effective immediately. One of the advantages of the POLST form is that it gives more detailed instructions compared with an Advance Health Care Directive or in a typical DNR order. Can you revoke your POLST at any time? Yes you can, assuming you have the legal capacity to do so.

/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.

Serving As Trustee Is Not All That Difficult

This week's question: I have been asked by my parents to serve as their Successor Trustee for their Living Trust after they are gone. My sister has been asked to serve as a backup to me just in case something happens to me. Before we commit to this responsibility, we need to know how difficult this job would be and whether prior experience is needed. My sister and I are rookies in this field and this is a little scary. Where are the rules to follow located? Will outside advisors be available to help?

/s/Audrey A., Almaden Valley

Dear Audrey: You have asked some very good questions, Audrey. Let us assume that your parents' estate is somewhat typical for Almaden Valley residents. They usually would own their home (perhaps along with the mortgage company). They may own another piece of real estate or two and have some savings accounts, checking account, IRA's and 401(k) accounts. If that is their general situation, you and your sister probably could do the job as Successor Trustee very nicely.

If their estate is in the millions of dollars, they may want to contact their bank to see if their bank has a trust department. This could possibly result in more professional management of the trust assets. Having served as a Successor Trustee myself, I can say that serving as Successor Trustee is not all that difficult. You can do it in many typical Living Trust situations. Key characteristics that you and your sister would need would include being responsible, careful, and cooperative with all of the beneficiaries of the trust. As I often tell my clients in the office, no prior experience is needed to serve as Trustee or Successor Trustee of the trust.

What is required is a lot of common sense, patience, and organization. Good record keeping is also important. And, yes, you and your sister would be encouraged to employ professionals to help you. You would want to consult with legal counsel as needed as well as with a tax attorney or certified public accountant (CPA)for any tax advice. Financial planners and other advisors are also needed from time to time. Once you assume the office of Successor Trustee, you will have a duty to administer the trust, a duty of loyalty, and a duty to deal impartially with the trust beneficiaries. ("Beneficiaries" are the individuals or institutions who will be receiving the trust assets.)

You will also have a duty to avoid any conflict of interest and a duty to take control of and preserve trust property. It is also important to keep trust property separate and identified and to enforce claims that the trust may have. The standard of care that you as a Trustee or Successor Trustee must adhere to is that of reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purposes of the trust as determined from the trust instrument. A trustee needs to invest and manage trust assets as a prudent investor would. You would also need to report information to the various beneficiaries of the trust so that they are reasonably kept informed of the trust and its administration. Of course, you as Trustee or Successor Trustee will need to account to the trust beneficiaries as provided by law.

If you want to do some reading in this field to learn more about the various rules that apply, feel free to read parts of the California Probate Code. Many rules that govern trust administration, including duties and responsibilities, are found in Part 4, entitled "Trust Administration", starting with Section 16000. What you may want to do is go on the internet with your favorite search engine and enter California Probate Code §16000 and it should be on your screen in about a half a second. Many sections will follow that are related to this basic topic. You might also want to check out a good book store for information and/or pay a visit to the Santa Clara County Law Library in downtown San Jose. The law library is taxpayer provided, so feel free to use it. As always, you will want to read this information in consultation with your own attorney who is best suited to help guide you in the right direction. Good luck with this venture, Audrey. I am sure you and your sister will find it quite worthwhile to help your family in this manner.

/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.

A Pre-Vacation Legal Checklist May Be Helpful

This week's question:

Our family is flying to London in August for a much-needed vacation. We will be taking our children with us. I was wondering if you could give us a pre-vacation legal check list. I have searched online and cannot seem to find a thing.

/s/Valerie V.

Almaden Valley

Dear Valerie-

Great question, Valerie. I hope that all of our Almaden readers give some thought to a legal checklist before they leave on vacation.

Here are some things you might keep in mind, since you never know what might happen. The various ideas mentioned below are not necessarily in any chronological order of importance.

1. Make sure your living trust is up to date. If you live in Almaden and own your own home, chances are excellent that you would benefit from a living trust. Check it out with your own attorney.

If you have a living trust already, good job. Then make sure it is up to date. If you need to have one done, along with several other documents, allow sufficient time for all the paperwork to be done and the transfers to the trust completed. I would think that four weeks would usually be needed to do everything right. If you do not have that much time (as some of us tend to procrastinate on these projects a bit), don't despair. Get done what you can get done. Right away.

2. Make sure your wills are up date. Most of need a will even if we have a trust. If they are out of date, this would be a good time to have them updated. Make sure your Alternate Executor is properly identified and that he or she knows where to find the original wills and a comprehensive listing of all of your assets and liabilities.

3. Be sure to check all of your beneficiary designations. This is often easily overlooked when you are busy getting ready for a trip. Check your IRA, 401K, life insurance, and other beneficiary designations. Including group life insurance. If that airplane goes down, where does the money go? Beneficiary designations are so critical since they usually take priority over the living trust or will. In other words, beneficiary designations in such documents usually take priority over the terms of a trust or will.

4. Check your Advance Health Care Directive. I saw in the news last week another story about another family fight about someone on life support. Such stories should be non-existent if we all have Advance Health Care Directives.

5. Check your Durable Power of Attorney for Asset Management. If you lose your legal capacity for some reason, you could well benefit from an Agent exercising powers contained in a Durable Power of Attorney for Asset Management. This document might alleviate the need for a costly, time consuming, and public conservatorship court proceeding.

6. Make sure the title to your assets is correct. If your house is held in joint tenancy, you might want to see your own attorney as to how joint tenancy with right of survivorship works if the airplane goes down or some other catastrophe occurs. Exactly how we hold title to our various assets is so very, very important.

7. Make sure your Successor Trustee and/or Executor knows where important papers and assets are located. This sounds so simple but it is obviously important if the need arises. If you are careless when it comes to things like this chances are it will not help you one bit and could be damaging. While it's on your mind, get things organized.

8. If you have minor children, you may well need a Nomination of Guardian. If dad and mom are gone and if they leave minor children surviving, the court will of course review carefully any Nomination of Guardian the parents have properly signed. What is more important than this I do not know.

9. Have your wishes concerning burial and funeral arrangements in writing. This also sounds simple, but you would be surprised at how many people just do not want to talk about this. Talk it over with your family and loved ones. And then put it in writing and update that writing as needed.

10. Turn off the water. Right about now you may say to yourself, "Huh?" This may not be a legal point of any kind, but it may be very important.

If you take that vacation to London you may be gone for several weeks. If your plumbing springs a leak while you are gone it could result in substantial damages to your home. It happened to some good friends of ours.

You might give some thought to either turning the water off or having someone check your property each day while you are gone. And it may result in a legal problem after all since there may not be any homeowner's insurance for a slow water leakage problem. In other words, a "leakage-seepage" exclusion in the policy may control.

So, there you have a pre-vacation legal checklist, Valerie. I hope that some of this information may be of benefit to you. Have a good trip!!

/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.

You May Be Able To Leave A List For Passing On Special Items

This week's question:

In case I pass on, I want to leave my wedding rings to my daughter, Rebecca. Shall I put that in my will? However, what if I change my mind? Or what if something happens to Rebecca? Will I have to go to the lawyer's office and change my will? This can get way too expensive, and maybe even cost more than the rings are worth! Is there any way around this?

/s/Dana D.

Almaden Valley

Dear Dana:

This has been a problem for many years. Many of us want to leave certain items to our family but to list them in a will or living trust becomes much too cumbersome. Our wishes change over the years as does the list of items and intended beneficiaries of the gifts.

If all of these items are listed in a trust or will, it often becomes quite expensive for the law office to list them and then when changes to the list are made, a new legal bill is generated for the new legal work. And this does not make for happy clients. And no wonder. But I may have some good news for you, Dana.

Now, there is a good way around this. As of January 1, 2007, a new law went into effect that allows consumers to refer in their will to a list that will be found at their death. The law is California Probate Code §6132.

The following are some of the key provisions of this relatively new law:

A will may refer to a writing [or list] that directs disposition of tangible personal property not otherwise specifically disposed of by the will, except for money that is common coin or currency and property used primarily in a trade or business. A writing [such as a list] directing disposition of a testator's [i.e., will maker's] tangible personal property is effective if all of the following conditions are satisfied:

* An unrevoked will refers to the writing.

* The writing is dated and is either in the handwriting of, or signed by, the testator [i.e., the will maker].

* The writing describes the items and the recipients of the property with reasonable certainty [for example, my wedding rings shall pass to my daughter, Rebecca].

The writing [i.e., the list] may be written or signed before or after the execution of the will and need not have significance apart from its effect upon the dispositions of property made by the will.

A writing that meets the requirements of this section shall be given effect as if it were actually contained in the will itself, except that if any person designated to receive property in the writing or list dies before the testator, the property shall pass as further directed in the writing and, in the absence of any further directions, the disposition shall lapse.

The testator [will maker] may make subsequent handwritten or signed changes to any writing, such as a list of personal property items. If there is an inconsistent disposition of tangible personal property as between writings, the most recent writing controls.

There are special rules covering the situation where a list may not be dated and if the testator [will maker] lacked legal capacity to make a will or the list.There are also limits as to the total value of items on the writing or list. The total value of tangible personal property identified and disposed of in the writing shall not exceed twenty-five thousand dollars ($25,000). Also, if the value of any particular item of tangible personal property described in the writing exceeds five thousand dollars ($5,000), that item shall be disposed of pursuant to the remainder clause of the will and not according to the list.

"Tangible personal property" means articles of personal or household use or ornament, including, but not limited to, furniture, furnishings, automobiles, boats, and jewelry, as well as precious metals in any tangible form, such as bullion or coins and articles held for investment purposes.

The term "tangible personal property" does not mean real property, a mobilehome, intangible property, such as evidences of indebtedness, bank accounts and other monetary deposits, documents of title, or securities.

"Common coin or currency" means the coins and currency of the United States that are legal tender for the payment of public and private debts, but does not include coins or currency kept or acquired of their historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment. In other words, it would not work to have normal money on the list but it would work to have historical and collectable coins.

You can read California Probate Code §6132 for yourself by going online with your favorite search engine. Enter California Probate Code §6132 and it will be on your screen in about a half a second, along with lots of advertising. Or use one direct link: http://law.onecle.com/california/probate/6132.html.

So, there you have it, Dana. I hope this helps in dealing with those wedding rings and anything else that might be placed on a list to be found at your passing. Of course, you will want to consult with your own attorney about your will and living trust for the complete picture of all issues involved, including the list. Please remember that you need to have a will that refers to the list. You cannot just make a list without a will to comply with California Probate Code §6132.

/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.

Form Wills Online May Create Issues Of Misunderstanding

This week's question:

I keep seeing ads on TV and online about LegalZoom.com and Quicken Will Maker. The Legal Zoom ad talks about wills for $69. That sounds like a pretty good deal to me, but I was wondering what you think about it. It seems to me you can't really go wrong with $69.

/s/Lori L.

Almaden Valley

Dear Lori-

In order to make a long story short, Lori, I do not think very much of any $69 will. I will be happy to explain just why I feel that way. Then you make your own decision.

A will is obviously an important legal document, one of the most important legal documents most consumers have during their lifetime. And if things are not done properly, disastrous results can happen to the consumer.

I guess it comes down to whether you are buying a product or a service when you are talking about wills. You actually need much more that a packet of papers that you fill out and then hope that it works. You as a consumer need general advice from a qualified legal representative and only your own attorney can help you with this.

For example, let's say you buy that will packet for $69. You fill it out exactly as the instructions say to do, with two witnesses and the whole thing. You read all the disclaimers. It even says that it's a good will for California residents. You sign it and the witnesses sign it and you think you are all set to pass on. You, like all of us, eventually do in fact pass on.

Your son then comes in to see me with the form will and explains the situation. The first question is about the house you had in joint tenancy. You were totally unaware that joint tenancy passes by operation of law to the surviving joint tenant and that surviving joint tenant is your daughter and not your son. Your will said one-half of everything to your son and the other half to your daughter. There is nothing I can do about joint tenancy. So, I have to say to your son, sorry, the house goes to your sister. There is nothing I can do.

Or let's say that you sign that $69 dollar will and think that everything will be fine. You die and everything in your name must go through probate court at 191 North First Street, San Jose, Department 15 at present. That is if you live in San Jose. The probate procedure will take 1-2 years in all probability to finish and along the way your family will have thousands of dollars in probate attorney's fees, administrator fees, bond fees, and related items. Does that $69 will still sound like a good deal?

Now, had you invested in a living trust you would have avoided all of the probate fees, lost time, stress, and other problems. In the short run you may have thought that $69 will was a good deal but in the long run I'm not so sure.

And if that is not enough, talk with your CPA or tax advisor about the dangers of capital gains tax with joint tenancy property that is not covered by the will. Don't take my word for it. Your $69 will that you thought was such a bargain may cost you big time in capital gains tax. Perhaps thousands of dollars.

These are just a few examples of why it is so much better for the consumer to invest a little more money in competent legal service. When you are thinking about your will or trust, you are not buying a product but investing in a service for your own best interests. If you think that I am just trying to drum up business for the legal profession, I am sorry you feel that way. But I do need to be honest and tell it like it is. I would of course say the same thing for my family and friends everywhere.

I am not saying that all will or trust packages are bad. Some may be OK, I am not sure. I just know that what is best for you is good legal service. Try to resist the temptation to do it the cheapest way. Strive for excellence in your will or trust planning.

I hope it all works out well for you, Lori. Best wishes in your decision-making.

/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.