Orange County Estate Planning Attorney

Boy was I wrong!

obrienzspeculator — Sat, 19 Feb 2011 21:30:22 +0000

On December 17, 2010, the congress of our Great Country booted the tax issue down the road by two years; however, rest assured this is not over. However, I was predicting sun-setting of the Bush Era tax cuts, and I was wrong. So while not being perfect in my predictions i don’t really think I am wrong just as usual prescient in my out look.

The clock has already started running, I have to go and set my clock.

Tic. Toc … Tic Toc

This is the End – 132 days away

obrienzspeculator — Sat, 31 Jul 2010 04:55:52 +0000

This is the end,
EGTRRA,
my twisted little tax act,
the end.
The end of uncertainty and pain,
producing a year when estate attorneys
and accountants may once again earn.

EGTRRA you strange and bitter tax law
you are way past ripe, and into the rot,
ready from the tangled tree of our Federal Tax Code to drop.

This sunset certainly will make a lot of people richer – if you consider only people who are eligible to pay the estate tax to be rich; i.e. In 2009, a rich married couple would have $7,000,000.00. However, in 2011 a married couple will be rich at $2,000.000.00, opening wide the entrance to the ranks of the rich to tens of thousands, or maybe 100,000′s of people who last year were thought of as only marginally well off.

That is a truly red-bulls!!t economic tonic;
We add hundreds of thousands of rich people to our economy in one fell-inaction.
The newly minted rich will trickle down their wealth to the working folks on main street. The economy perks up and grows much faster,
because we all know when hundreds of thousands of people trickle out little streams of cash they unleash an economic flood. And remember a flood wrecks all boats, and homes and businesses too.

Oh, and if they would sunset the war on drugs some of that money might actually stay in country.

The above micro-farce is only a derivative-micro-farce made up of slivers of old and blurry macro-farces mashed together — Get it, a derivative, (a la TBS – Very Funny)

Also the California Pick up tax will be reinstated, a gray lining on a dark cloud.

Don’t rely on this as legal or tax advice, but if you want you can hire me and I will provide you with excellent legal service. Don’t use any of this information to avoid paying taxing penalties, publication 230 warning

obrienzspeculator — Thu, 08 Jul 2010 16:43:57 +0000

Now is the best time to get your estate in order or even started if you do not have one. Talk to Jerry @ 714 985-9025

Estate Planning with Wealth Transfer Entities

obrienzspeculator — Sun, 13 Jun 2010 23:46:09 +0000

There are many entities that you may use in estate planning. The following are only some of the estate planning tools you may use. Trusts of many varieties must be considered and then some may be used. Last Wills must be considered. Corporations are often used in estate planning. This article however focuses on revocable Trusts. Irrevocable Trusts. Supplemental Trusts. Spend thrift trusts and more.
1
Wills

Wills are documents that allow a person to have their estate managed and distributed under court supervision through a process called probate. Probate has an undeservedly bad name, because at times it is extremely beneficial. It can be time consuming and it can be expensive but sometimes the cool and impartial head of a judge prevents many problems. You should not rule out the benefits of proceeding under probate until you have discussed your particular situation with an attorney. More often than not a Revocable Living Trust based plan will provide you with greater flexibility and will be the option of choice, however if the family likes to feud probate may make administration much easier
2
Trusts

There are many different kinds of trusts and they have many different uses. The most common elements of trusts are flexibility and utility during life. A Will is only effective at death. A trust can be effective the moment that you sign it. The trust may be understood as serving two functions. First it is an entity that is used to hold title Second it is a set of instructions.
3
Irrevocable Trusts

Give away property and it can not be taken from you. You can make outright gifts but then the property will not be there for you. But when you settle your property in a trust which can not be revoked and fund it with property that can not come back to you, as the owner, you have a vehicle which will allow for your exclusive use and enjoyment. Would you rather own something that can be taken from you or use something that can’t.
4
Charitable Trusts

Most inherited money is spent within two years of its receipt. It doesn’t matter if the inheritance is large or small, the inheritor, old or young, male or female, educated or not. Found money burns holes in people’s pockets. So if it will all be gone in less than twenty-four months would skimming 20% for a favorite philanthropic cause hurt anyone? We think not. Charity in fact benefits not only those who receive but those who share the community and the giver herself. There is a great variety of vehicles for charitable giving. Finding the one that suits you best, is very important. We can explain each of your options and show you how they fit into your estate plan.
5
Special Needs and Supplemental Needs Trusts

The miracles of modern medicine have made staying alive more possible then ever, but being alive and being able to manage your estate are two entirely different things. A special needs trust is the vehicle of choice for use when a person, man or woman, adult or child can not manage their estate due to injury, illness, or disability. The special needs trust provides, while allowing the disabled person to receive government services.
6
Trusts within Trusts: Subtrusts

A revocable living trust [RLT] can be drawn so that it creates sub-trusts as needs arise. For the children there are separate trusts, education trusts, pot trusts, special needs trusts and more. The married couple can have individual trusts, joint trusts, separate property trusts, etc. A joint RLT can split into marital deduction trusts, bypass trusts, survivors trusts, family trusts and more.
Additional Resources

Cornell’s Legal Information Institute (LII) for: California Probate code California Civil Code California Code of Civil Procedure Internal Revenue Service Web Site (IRS) for Internal Revenue Code Internal Revenue Code
Legal Information Institute
The Internal Revenue Service

Advanced Estate Planning – Family Business Owners: Train Future Leaders Now

obrienzspeculator — Sat, 05 Jun 2010 03:05:21 +0000

Many estate plans have one exceptional asset, a family owned business. Therefore a major part of your estate planning will be training family owned business leaders . Present owners must teach company values to the next generation of family business leaders every day. Your estate planning goal as an small family business owner is to train future leaders so they have the skill to create greater success than the present owner of the family business has already attained.

Train. Train early. Train often. Train consistently and train present leadership as you train future leaders.

In family situations great children sometimes make poor friends and partners, or they have a synergy that makes the sum of the parts greater than the parts themselves. As the present business leader you always need to have your eye on the future because in twenty short-years your 10 year-old will be approaching the prime of career and business life.

The longer you have to find and train the people who will become the future leaders of your family business the greater success you will have. Success in educating who you have chosen to lead your family’s business ;to bring them and the business to its full potential – is not something that just happens.

In a small business there is the same need for understanding the leader’s responsibilities and obligations as in a larger or complex business. Leadership qualities only come from the culture employed in training chosen successors as to what the next leader must do to continue the business’s success.

The sooner the decision is made to keep the business in the family as opposed to selling it to a third party the sooner the present leaders can begin the process of training possible successors, to continue the business’s mission, carry on its values and continue to grow the business.

Business Succession Planning

How Can I Amend My Trust?

obrienzspeculator — Sun, 30 May 2010 20:03:29 +0000

Amending a revocable living trust is easy and should be inexpensive even with the help of a lawyer.
Normally the trust will contain a reservation of rights and among those rights it usually says “I reserve the right to amend my trust.”
You need to do the amendment in writing and you should not cross out the amended section in the original trust document.
Most people also include a reaffirmation of the trust as to all of the articles and clauses that have not been amended.
If you have a joint trust you will need all trustors and Trustees to sign the amendment, and if the trust is irrevocable you will need all beneficiaries, living trustors, trustees and possibly a judge to make an amendment. However, more on that at a later date

What are the differences between a Last Will and Testament, A Pour Over Will and A Living Will?

obrienzspeculator — Fri, 28 May 2010 16:32:12 +0000

Traditionally a Will or a Last Will and Testament is the document a person would create for the distribution of their property at the time of their death. The will could also include how estate taxes if applicable would be paid, how other taxes such as final income taxes would be paid, and from what property, also conditions on distribution of assets were also included to attempt to control heir’s behavior should they want to inherit. Today, the will remains one of the most widely used and effective means of distributing wealth and providing a means for closing the decedent’s estate.

A Pour-over will is a last will and testament that incorporates an existing Trust so that the Pour over will is governed by the terms of the trust. The pour-over will is usually drafted as part of an estate plan based on a revocable or other type of trust, with its main purpose being to put assets of the decedent that were inadvertently not included in the trust into the trust after the death of the trust maker.

A living will is health care document in which the maker sets forth his or her desires for end of life decision making. The normal form living trust which most people sign has a main feature of prohibiting heroic measures in the event of imminent death or a prolonged and irreversible coma, or persistent vegetative state.

Should you have any questions about the preparation and use of these documents do not hesitate to call the author.

Letting People Who Count Know What You Want

obrienzspeculator — Thu, 27 May 2010 21:17:54 +0000

Your POLST and your other end-of-life decision documents don’t do much good if you do not let those most likely to need them know that you have prepared them.

When these documents are prepared you should make copies and deliver them to your doctors. I say doctors because most of us have more than one and the older we get the more doctors we are likely to accrue. I advise clients to bring a full set of copies to each new doctor that they visit so that the chances of the documents being available when you need them becomes greater.

I also advise clients to always go deep on the number of persons who can act as successor agent, attorney-in-fact, because your first choice may be unavailable on the day when you need their assistance.
I also advise my clients to name one person to serve at a time so that a committee does not have to convene in a crisis.
Finally there are companies that will scan your documents for a fee and make those documents available 24/7 with a phone call and the entering of a pin number. Such a service could provide you with the added protection that saves your life.

POLST- Physician Ordered Life Sustaining Treatment

obrienzspeculator — Wed, 26 May 2010 17:48:17 +0000

This legal-medical document allows patients and their physicians to enunciate in concise terms their understanding and selection of certain options regarding end of life treatments.

One object of the POLST form is to eliminate ambiguity as to medical, legal and ethical terms. Another is to make terminology uniform across state lines. California has adopted POLST and so have additional states (CA, HI, ID, MD, NY, NC, OR, TN, UT, WA, WV) Other states are also studying this model.

Ideally the physician will lead a discussion regarding the form and the patient’s options and the doctor and patient memorialize the patient’s wishes on a bright pink form which the Doctor then includes with the patient’s medical file or chart.

While this document and the model are excellent I have added the POLST to my document package, not removed any of the other documents. Care must be exercised by the scribe to fill out the documents in such a manner that there exist no conflicts.

However, I still believe the Health Care Power of Attorney, HIPAA Declaration and Living will continue to serve their purposes.

Hand drafting a clients end of life desires can be rewarding for the maker and comforting to those who will be charged with carrying 0ut the maker’s desire.

However, I favor of the use of the POLST document as it further reduces the probability that unauthorized health interventions will be imposed nor authorized interventions withheld from initial onset of incapacity through to death the maker of the POLST.

However, I am still preparing a Living Will, a Durable Power of Attorney for Health Care and a HIPAA Declaration for all of my clients, to go along with the POLST.

Preparing all four documents correctly and without conflicting directions, provides a belt and suspenders approach to having end of life medical treatment be what the maker of the documents – the patient - wants done.

I sympathize with distraught family members who would like their loved ones treated the way the family member believes is best, but I am more sympathetic to the person facing death who has made his or her wishes known.

Keep in mind a POLST provides for all levels of treatment from maximum life sustaining treatments, even those which will merely prolong dying, to minimum treatment for comfort and provision of pain relief even if that provision of medication shortens the maker’s life.

I advocate letting family members know your wishes so that at the difficult time when these documents are needed and used family members do not suffer shock and emotional distress by the maker’s desires.

How Does Your Business Fit into Your Estate Plan

obrienzspeculator — Wed, 19 May 2010 19:37:11 +0000

With many small business owners (smalls), the family business is the family’s largest asset. However, unlike the family home, usually the second largest asset it is harder to value, more difficult to operate, and takes much more planning for successful transfer.
However, since it is your business you can do anything you want with it in terms of planning. The only constraints are time, training successors, valuation, labor issues, team issues, vision or mission issues, compliance with taxing agencies, industry watchdogs, Customers and on and on. There is a need to be a plan that you as the owner can implement and monitor if you want to maximize the value of the business and ensure its smooth operation and growth.
It is my belief that just as we hope to pay off the house by retirement and have an income that allows us to partake of the rewards of our hard work, we need to have the business ready for sale always. However, sale or transfer to family members requires more planning to ensure continued success and, business protection and an adequate pay out to you the seller.
My recommendation is that you revitalize your business operating plan, begin to formulate possible schemes of Transition and Transfer and you must train the heir apparent, or an outside buyer so that when they step in your regular customers only realize you are gone, because they don’t see you; not because of poor service products or inept service.
Time is the most valuable asset in business planning. The earlier you start the smoother the transfer. I believe and recommend that you start serious proactive planning eight (8) years or more before your target sale or transfer date. It is wonderful if you can start your succession plan, when you start your business. However, it is still possible to achieve success if you begin your planning a year before you want to make your exit; it is just more expensive and harder.
Plan early and often, because a stagnant plan is much more like a will, then it is like program to maximize the safe and profitable sale of your business.
Next: When they begin the business succession plan.