Because We Are Human Life/Death/Law Podcast

Welcome to Life/Death/Law. A podcast about estate planning, an issue that affects all of us, because we're human. Lawyers tend to make estate planning both boring and hard, but I think it doesn't need to be either one. After 20 years writing about it and writing estate plans for hundreds of families, I actually think it's a fascinating and rich topic. Death is like sex. We all do it, but we're often afraid to talk about it. I created the Life/Death/Law podcast to answer your questions with no judgement and to bring you experts on topics that matter. Are you ready? Let's get started.

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bank-building-300x225Most people know that the FDIC (Federal Deposit Insurance Corporation) insures bank accounts for up to $250,000 per depositor per covered bank. This insurance was increased from $100,000 to $250,000 in 2008, to reassure people during the chaos of the financial meltdown that started in that year. (This increase was supposed to be temporary, but was made permanent in 2010, as part of the Dodd-Frank Act).

So, if, for example, you are the sole owner of a bank account with $500,000 in it, that account is only insured for $250,000.  If that same bank account is co-owned by your spouse, that account is insured for $500,000 because each owner gets that $250,000 of insurance. For many of us, that’s enough insurance. But not always. I’ve had clients call me after they’ve sold a house, nervous about the fact that they have a large balance on deposit at the bank. What to do?

A living trust can help here. While it is true that everyday bank accounts that don’t accumulate much money (the ones you use to pay bills) are usually not put into a living trust, larger accounts are.  There are two reasons for this: first, large accounts should be held in trust to avoid probate at the owner’s death; second, holding a bank account in the name of a trust means additional FDIC insurance on that account.

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san-francisco-210230_640-300x225I can usually tell when mortgage rates begin to drop because my phone starts ringing with former clients who are trying to refinance.  Often, their loan broker wants them to supply assurances that, if the living trust owns the house, the trust gives the Trustee the power to mortgage the property and use the house as collateral so that the lender’s interest is secure. (That’s a lawyer way of saying that the lender wants to be certain that, if the mortgage isn’t paid, they can take the house.)

Sometimes the lender wants a letter from an attorney certifying certain things are true about the trust — usually that it is revocable, that is valid under California law, and the Trustee has certain powers including the power to borrow. Often, they want this letter right away because it’s holding up the deal.

The issue underlying all of this paperwork is that some (but not all) lenders are uncomfortable because something other than the individuals applying for the loan owns the property (the trust). Here’s an article that explains this in more depth from SF Gate.

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loneliness-2308923_640-300x200A few months ago, the New York Times published an article entitled, “Single? No Children? No Will? Big Mistake.” I’ve been meaning to write about it ever since. The author writes, “Certain people never reach one of those obvious points in their lives to write one. If you are unmarried in middle age, do not have children and have never had a devastating disease or brush with death, making plans for what happens to your stuff if you’re not around may not feel pressing.”

The author is so right. I have met many people who somehow feel that, because they don’t have children, they don’t need an estate plan. But here’s the thing — people without children may have even MORE need to make a plan that those with kids.

For one thing, all of us, at some point, are going to get sick or otherwise incapacitated, and need someone to act on our behalf — to pay bills, maintain our homes, or make medical decisions. Estate planning is not just about transferring assets when you die, it is also about planning for incapacity. And everyone needs to do that.

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Tomcloseup-300x300When I started writing about California’s End of Life Option Act in this blog, I never imagined that an old friend, from a job that I had in the late 1980’s and early 1990’s, would be one of the people in California to make use of it.

But in late March, Tom Negrino, terminally ill with cancer, made a plan to take drugs that would put him to sleep, then allow him to pass away. The End of Life Option Act allows patients, like Tom, with less than six months to live, to choose to take their own lives, provided that two doctors determine that the person is mentally competent to make medical decisions, is able to swallow medication themselves, and requests the aid-in-dying drug both verbally and in writing.

In a story in the Healdsburg tribune, on March 7, 2017, Dori Smith, Tom’s wife, said that Tom was exhausted after a multi year struggle with kidney cancer and was ready to rest. She said, “He’s fought and he’s fought, all of his life. He’s the eldest son in an Italian family; he’s always been strong. His biggest grief now is that he can’t read or write.” If you’d like to read what Tom had to say about dying, you can read his post here.

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money signI was recently at a friend’s house, and, accidentally made someone’s day. This is not a usual occurrence for me, but I did enjoy it.  Here’s what happened: a woman that I didn’t know told me that she had inherited her parents’ house in Berkeley. Because she had inherited it from her parents, she also was able to keep their very low property tax rate. Her problem was that she thought that she’d like to sell that house and buy a new one, but was worried that her property tax rate would skyrocket as a result.

Here’s what she didn’t know: if she waits until next year, when she turns 55, and purchases a new home that’s worth the same or less than the residence that she is selling, and buys the new house within two years of selling the old one, she can keep her old property tax base for the new house. She has to sell her old house to a new owner so that the new home can be reassessed for property tax purposes and she has to file a claim for exclusion from reassessment on the new property within three years of the purchase. In tax language, this is called “transfer of base year value,” which is the value that the county assessors use to calculate the property tax owed each year.

This is a one-time exclusion from reassessment for those over 55. So, the next time she sells her home and buys a new one, her property taxes will go up. Proposition 60, passed in 1986, established this exception for intra-county transfers–that’s Latin for WITHIN a county. So, if my new acquaintance stays in Alameda county, and otherwise follows these rules, she won’t be reassessed.

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college quad
As the season turns and it starts to feel like Fall, many parents are either paying college tuition bills or worrying about paying them. Many of my clients have asked me how 529 college savings plans or custodial accounts are counted when colleges consider financial aid.

Here are the basic rules and a few strategic ways to use them.

Student’s assets are counted more heavily than parents’ assets by colleges. When a school analyzes family finances using the Free Application for Federal Student Aid (FAFSA), which most schools do, they count parental assets differently than those owned by students when they calculate how much a family should contribute towards college costs. When the schools calculate the Expected Family Contribution (EFC), they expect parents to contribute no more than 5.64% of their assets. But a student is expected to contribute 20% of their assets. That means that if a student is considered the owner of an asset, a school will expect that student to use more of it to pay for school than they would expect from a parent that owns the same amount of assets. So, any asset a student owns will reduce available financial aid more than any asset a parent owns.

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BabyNew parents face so many new challenges–from figuring out how car seats work to figuring out how babies work. I remember taking a deep breath as we opened the door of the hospital, loaded our daughter into the car (including several annoying moments in the parking lot trying to gently put her new born and limp body into the brand new car seat) and out into a whole new world.

Part of that world includes estate planning. I built my practice, in the early days, by giving workshops at preschools, parenting groups and new parent groups at all of the local hospitals. New parents are often sleep deprived, terrified, and overwhelmed. But here’s what I told them, over and over again — you don’t have to do everything now, just put the basics in place and promise yourself to revisit your estate plan in a few years, when you are getting some sleep.

If you are a new parent, or know one, here are the basics:

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42198970 - picture of beautiful village house with gardenMany of my clients come to me with a very Californian problem: they bought their home many years ago for a fraction of what that home is worth today. For example, their mid-century house near downtown cost them $125,000 in 1973 and could be sold for $3.2 million next weekend. While that’s an excellent problem to have in some ways, what it means for a person who needs to sell that home is that they are going to have to pay a lot of capital gains on that sale.

Capital gains taxes are levied upon the difference between what someone buys an asset for (called ‘basis’) and what they sell that asset for–the lower the basis, the higher the gain, and the higher the tax.  In 2016, the maximum for long-term federal capital gains taxes (for assets held longer than one year) is 23.8% for high income families. In California, you need to add another 10%-13.3% for capital gains , so roughly a 33% total tax is what you’d expect to pay for capital gains at both the state and federal level.

Each person is entitled to a $250,000 exclusion on capital gains taxes for the sale of their primary residence, so if a married couple sells, they’ll have $500,000 excluded from tax.  In many parts of the country, that means people can indeed sell their residence and pay no capital gains taxes. But not around here.

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piggy bankCustodial accounts are an easy way to hold money for a minor child’s benefit. They have many advantages.  They’re free-it’s easy to open up a custodial account at any bank or financial services company.  (You’ll know if an account is custodial in California because it will say “CUTMA” on the statement, which stands for California Uniform Transfers to Minors Act.)

They’re simple-a custodial account can hold cash, or other assets, for the benefit of a minor until a certain age (in California, until age 21 if the account is established during life; 25 if created by a Will or a trust after a death). They work as intended – when the property is transferred to the CUTMA account, the child becomes the legal owner, but has no control over the money until the account ends, when they are old enough, presumably, to properly manage it. Until that time, the account’s custodian can use the money for that child’s benefit.

But what do you do if they get too big? I’ve had more than one client come into my office terrified because their children are going to inherit hundreds of thousands of dollars way before their parents think that would be a good idea. Some of you are, no doubt, rolling your eyes in mock horror, but this can be a source of great stress for parents. Imagine, for example, that a well-meaning grandparent bought Pretend Co. stock when it was at $7/share (in 2002) and gave 2000 shares of stock to a custodial account for your child. Fourteen years later, that stock is now worth $104/share and worth $208,000! And your adorable child is now a goofy 17 year old, interested more in texting, dating, and driving than careful investing.

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kid and mom travelIt’s summer and families are on the move.  Some of them are crossing borders. And it turns out that in this day and age, in addition to passports, tablets, and endless patience, parents also need to consider whether or not they’ll need a permission letter as well.

If you are traveling internationally with minor children and are either doing it solo, or are not the child’s parents, be prepared to be asked for a document showing that you have permission to do so.

A Minor Travel Consent Form has become an increasingly necessary document. Here’s how the US Customs & Border Protection Service puts it on their website: “Due to the increasing incidents of child abductions in disputed custody cases and as possible victims of child pornography, Customs and Border Protection strongly recommends that unless a child is accompanied by both parents, the adult have a note from the child’s other parent (or, in the case of a child traveling with grandparents, uncles, aunts, sisters or brothers, friends or in groups, a note signed by both parents) stating “I acknowledge that my wife/husband/etc. is traveling out of the country with my son/daughter/group. He/She/They have my permission to do so.”