In California, a gift in a will or trust by a "depdendent adult" to a "care custodian" is presumed invalid. I put those phrases in quotes because they are defined in the Probate Code and also in case law. The phrase "care custodian" has been particularly problematic for estate planners because it has been defined in case law rather broadly to include non-professionals (including friends and acquaintances) who provide health services or social services to a dependent adult (anyone over age 64, or a person between 18 and 64 who is an inpatient in a 24-hour health facility.) The law seemed broad enough to include anyone who helped a dependent adult in any way.
The recent case of Estate of Austin has helped clarify the definition of care custodian somewhat. The decedent was 72 years old, suffered from a broke hip, and had recently undergone triple bypass surgery. The decedent's ex-wife's daughter (ex step-daughter?) helped to prepare meals, drive him to doctor appointments, and "other unspecified helping out." The court of appeals concluded that this "could not reasonably be characterized as substantial, ongoing health services or social services" and held that she was not a care custodian, so the decedent's gifts to her were valid.
Friday, September 17, 2010
Tuesday, September 14, 2010
DIY Estate Planning Reviewed in NY Times
I swear I didn't learn about this NY Time article when I wrote yesterday's post. Tara Siegel Bernard used LegalZoom.com, Quicken WillMaker Plus and a program called Legacywriter to prepare wills (Tara lives in New York, where the vast majority of estate plans are will-based), and then had New York estate planning attorney Laura Twomey review the plans. The verdict: although it is possible to do it yourself, there are still a lot of questions that arise thare require an attorney's help.
This will probably not be enough to discourage the true do-it-yourselfer, but it illustrates how taking the law into your own hands will always entail some level of risk.
This will probably not be enough to discourage the true do-it-yourselfer, but it illustrates how taking the law into your own hands will always entail some level of risk.
Monday, September 13, 2010
Estate Planning as Commodity
A recent article in California Lawyer magazine profiled LegalZoom.com, the self-help website co-founded by Los Angeles attorney Robert Shapiro. The article starts with the rather ominous proposition that the website will put many lawyers out of business. Yeah, sure, it's hyperbole aimed ag generating interest, but there is something to it, especially for estate planners.
There are a great many people out there who believe that a will or a trust as a mostly boilerplate document that doesn't require paying a lawyer several thousand dollars to prepare. They believe they know who they want to name as their fiduciaries and who they want to leave their estate to. Whether their estate planning ideas will actually work is another story, and it is doubtful that using services like LegalZoom or will drafting software or storefront document preparation businesses can provide the necessary guidance to such people, or whether doing so would constitute practicing law without a license.
Nevertheless, as more people look to the internet first for solutions to whatever issues they face, places like LegalZoom.com will become more popular. Consider how the internet has changed the travel industry, or financial management. As an estate planning attorney, it will inevitably get more difficult to compete with these low cost options. At the same time, there are still people out there who would never try to prepare an estate plan on their own. I think there is room for both kinds of people, and there will continue to be room for at least as long as I plan to practice law.
I don't see this trend as a threat to my livelihood. But, then again, I also litigate trust and estate matters, including disputes that arise out of drafting errors and poor planning...
There are a great many people out there who believe that a will or a trust as a mostly boilerplate document that doesn't require paying a lawyer several thousand dollars to prepare. They believe they know who they want to name as their fiduciaries and who they want to leave their estate to. Whether their estate planning ideas will actually work is another story, and it is doubtful that using services like LegalZoom or will drafting software or storefront document preparation businesses can provide the necessary guidance to such people, or whether doing so would constitute practicing law without a license.
Nevertheless, as more people look to the internet first for solutions to whatever issues they face, places like LegalZoom.com will become more popular. Consider how the internet has changed the travel industry, or financial management. As an estate planning attorney, it will inevitably get more difficult to compete with these low cost options. At the same time, there are still people out there who would never try to prepare an estate plan on their own. I think there is room for both kinds of people, and there will continue to be room for at least as long as I plan to practice law.
I don't see this trend as a threat to my livelihood. But, then again, I also litigate trust and estate matters, including disputes that arise out of drafting errors and poor planning...
Drafting Effective Wills and Trusts
I will be giving a presentation entitled Fundamental Principals of Will Drafting at the upcoming NBI seminar "Drafting Effective Wills and Trusts" on Tuesday, September 21 at the Grand Hyatt San Francisco. It's an all day seminar starting at 9:00 am through 4:30 pm. My presentation runs from 9:00 to 10:30.
You can get more information at http://www.nbi-sems.com/Enbi/Brochurepdfs/53508.pdf.
Tuition is $349. It is approved for continuing ed for California attorneys, Accountants, financial planners, enrolled agents and others.
Hope to see you there!
You can get more information at http://www.nbi-sems.com/Enbi/Brochurepdfs/53508.pdf.
Tuition is $349. It is approved for continuing ed for California attorneys, Accountants, financial planners, enrolled agents and others.
Hope to see you there!
Subscribe to:
Posts (Atom)