I understand that people don’t necessarily know what they want or need before they learn more about estate planning that people may want to get to know me before they commit to spending money to talk to me.

We do offer estate planning seminars in our onsite classroom where prospective clients can hear me speak for an hour or two, get an introduction to estate planning, and ask general questions in a public setting. This way, I can explain basic estate planning and answer common questions in a way that helps 20 or 30 people at a time, instead of 1 or 2 at a time.

I don’t do free consultations for several reasons. The biggest reason is that I have found they’re often a waste of my time – and I think that expectation that someone’s going to get legal advice for free creates an environment where a lot of clients’ time is wasted, too.

I saw a job posting recently that does a pretty good job of illustrating why I don’t think it’s likely that some other law firm’s “free consultation” is likely to be as helpful as it sounds. The law firm (a local San Jose firm, with remote offices in other Bay Area cities) is looking for another attorney to work in their offices. Here’s how they describe what they’re looking for:

We specialize in Family Law, Bankruptcy and Estate Planning. With 9 offices located throughout California, we are in immediate need of excellent attorneys who can sell and close new business. You will be responsible for conducting phone screens of new leads with the goal of setting face to face consultations in one of our 9 offices located throughout California. In addition, you will be responsible for conducting face to face consultation appointments with the goal of signing new clients! You will be an important part of lead conversion for the firm. If you have your law degree, enjoy working with people and have strong sales skills, then you should apply!

Judging from this job ad, I get the impression that if someone calls this law firm with questions, their phone call will be handled by an “attorney” acting in essentially a sales role, whose task is to “set a face to face consultation”; and then to conduct a face to face consultation appointment with the goal of signing up a new client. The ad goes on to say that they’re especially interested in attorneys with a “strong sales background.”

When you think about getting legal advice, do you think of yourself as a “lead”? Would you like to be “converted” by a person who’s been hired to “sell and close new business?”

When you look in the yellow pages or on the Internet and see someone offering “free consultation”, you should consider the possibility that the “consultation” you’re going to have will be a little like having a “free consultation” at a car dealership. Hey, those guys down on Auto Row will answer your questions all afternoon – not because they’re giving you a “consultation”, but because they’re giving you a sales pitch.

Do you suppose that a person who goes to a “face to face consultation” at a firm like this one is ever going to walk out of their appointment having been advised that their existing estate plan is just fine, or that they don’t need a complicated plan, or that they’ve got nothing to worry about?

Law firms and attorneys need money to survive. I’m not going to pretend otherwise. But if you work with a law firm that only gets paid when they talk someone into having new documents drafted or having documents filed in court . . what do you suppose the chances are that they’re going to find a reason to tell you that you need to have some new documents drafted, or that you’re going to need something filed in court?

Our conceptual model for appointments is that we’re like a doctor’s or a dentist’s office – if you go to your doctor or your dentist for a checkup, or with questions about a medical or dental issue you’re experiencing, your doctor or dentist is going to charge you for an office visit. In many ways, the best possible outcome for that doctor’s appointment or that dentist’s appointment is for you to learn that you don’t have something to worry about, that everything’s fine, or that you have a minor problem that can be solved relatively quickly and inexpensively.

When I switched from “free consultations” to “paid consultations”, I found that what I really like about paid consultations is that during my appointment with someone, I’m free to focus entirely on what’s going to be the best approach to solving their problem, whether or not it means I’m going to do some extra billable work. When I used to do “free consultations”, I found myself trying to predict, a few minutes into the appointment, whether or not there was really any billable work to do – and if there wasn’t, I had a strong motivation to get the client out of my office so I could move on to billable work. If there was work to do, the focus of the meeting often turned into trying to convince the client that they ought to have work done – which I found to be somewhat unnatural and unpleasant for the clients and for me.

If I spend all day, every day, having paid consultations where I either tell people (honestly) that their documents and estate plans are fine, and that no changes are needed, or drafting simple documents during our meeting which can be signed immediately, my office will run just fine. We’ll pay the rent and our employees and life will go on.

If a “free consultation” firm spends all day, every day, having free consultations where they tell people that they don’t need new documents, or that they need simple changes that can be completed during the meeting .. how long do you suppose that firm can stay in business?

How much of the fees charged to clients who do have work done are effectively subsidizing the clients who had “free consultations?” If you do need to have work done, do you want to pay for other people’s consultations, too? If the other people aren’t paying, and the attorney is getting paid, where do you suppose that money is coming from?

In brief, Michael Jackson’s parents are asking the court to appoint Katherine Jackson (Michael’s mother) as guardian of his three children, as administrator of his estate, and as a special administrator to immediately assume control of his assets.

The probate petition is drafted as if Michael Jackson didn’t have a will; supposedly, an attorney has an original will signed by Michael Jackson which will be filed for probate. In California, a person in possession of a decedent’s will has 30 days from the death to deposit the will with the superior court in the county where the decedent lived.

In Cory v. Toscano, the person who created the trust gave “(a) To Elaine [last name omitted here for privacy] the balance remaining from the sale of my real property in Los Banos . . .”

At some later point, the creator of the trust apparently changed his mind, adding in his own handwriting the notation “^ 25% of” to the paragraph, so that the changed version said “(a) To Elaine, 25% of the balance . . .” The handwritten changes were dated and had the initials of the trust’s creator.

It’s no surprise that after the trust creator died,  Elaine, whose inheritance was cut by 75%, wanted to challenge the modification to the trust. Elaine’s attorney filed a special petition requesting a court ruling on the question of whether or not the handwritten changes to the trust were protected by the trust’s “no contest” clause. The Court of Appeals ruled that the handwritten changes were not protected by the no contest clause – meaning that Elaine can challenge whether or not they were an effective modification to the trust. If Elaine wins her challenge, she gets the full value of the Los Banos property. If Elaine loses her challenge, she gets the same 25% she would have received if she hadn’t brought her challenge. She’ll have to pay attorney’s fees for her challenge – but it looks from public records like the property is worth at least $800,000, so she’s balancing spending a few tens of thousands of dollars against potentially recovering $600,000.

What can we learn from this case? The first lesson is that handwritten, informal changes are likely to cause problems. The second lesson is that piecemeal amendments to trusts are invitations for problems – even if the trust creator had asked his attorney to formalize this change, it would have been obvious to Elaine that her $800,000 inheritance just turned into a $200,000 inheritance; and the change to the trust that reduced her inheritance wasn’t protected by the no contest clause.

In California, heirs and beneficiaries are entitled to a complete copy of the “Terms of the Trust” – this includes the original document, and any amendments. It does not include previous versions of the trust if they have been entirely replaced by a restated trust. If your trust document (and amendments) show a series of changes, where some beneficiaries’ shares grow or shrink, you should know that the beneficiaries will eventually see all of the different versions. Making the changes in small discrete steps makes it tempting for a family member or friend to challenge “just the last change” and ask a judge to go back to an earlier version of the trust that’s more favorable to them.

My office practice is to avoid partial amendments whenever possible – the small amount of money saved by not restating the document is tiny compared to the potential financial and emotional burden on beneficiaries and successor trustees when all of the piecemeal amendments are eventually revealed after death. If the trust had been “amended and restated in full” to match the creator’s wishes, it might be that Elaine would never know about the $600,000 she didn’t get, she would have been happy with her $200,000 gift, there would have been no lawsuit, and the property would already be sold.

By saving a few hundred dollars in legal fees or a trip to the attorney’s office, the trust creator has now caused what must be approaching a hundred thousand dollars in legal fees for this fight, and years of delay in estate administration.

If the decedent used a revocable (“living”) trust, and changed the title on the bank account to reflect trust ownership – no problem, no probate is required.

If the decedent used a revocable trust but didn’t change the title on the bank account to reflect trust ownership, then it may be possible to use a petition under California Probate Code Section 850 (a “Heggstad petition”) to get control of the account without the delay and expense of a full probate.

If the decedent didn’t have a revocable trust and the balance in the account is less than $100,000, then the other-state executor or beneficiaries can wait until 40 days after the death, then use a small estate affidavit to collect the funds.

If the decedent didn’t have a revocable trust and the balance in the account is $100,000 or more, then an ancillary California probate will be necessary, including all of the traditional probate procedures and formalities. This is the worst-case scenario; I usually tell people that a probate in Santa Clara County will take approximately a year to complete, and 18 months isn’t surprising. A probate for a single asset like a bank account will be able to move quickly through the inventory & appraisal stage, since there isn’t much work to do, but there’s still a mandatory waiting period for creditor claims, and the delays inherent in scheduling multiple mandatory court hearings.

As a California resident and a California attorney, I’m embarassed that our state does this to people from other states; I don’t think it’s fair or reasonable, but that doesn’t mean it’s not the law. What’s even worse is that this feature of California law isn’t well known, and isn’t likely to be known by residents of other states, or even by attorneys in other states who haven’t run into the issue before. So it’s a problem that will surprise people over and over again.

It’s also a reminder to keep on top of little details with respect to bank accounts and estate planning. In this case, the failure to (a) use a trust, (b) designate beneficiaries on the account, or (c) move the account out of California is likely to cost the beneficiaries a few thousand dollars and months of delay while the probate proceeding occurs. I’m sure that’s not what the decedents intended, but it’s what they got.

In Hogan v. Country Villa Health Services, a California appellate court enforced an arbitration clause in admission documents for a skilled nursing facility, signed by an elderly woman’s daughter upon admission. When the elderly woman later died while a patient of the skilled nursing facility, her family wanted to sue for wrongful death, eder abuse, and violation of patient rights.

The skilled nursing facility asked the court to rule that the family was forced to bring their elder abuse claim before an arbitrator instead of to a jury, because of the documents signed at the time of admission. The family argued that, even though the daughter had a statutory Heathcare Power of Attorney form signed by her mother, the mother had not authorized the daughter to waive her right to a jury trial in a real courtroom.

The Appeals Court held that the California statutory Advance Health Care Directive form (see Probate Code section 4701), as it was signed by the mother, was sufficient to give the daughter the power to agree to the arbitration agreement.

The unfortunate result is that the elder abuse claim will not be heard in a public forum – even though it’s likely that neither the mother nor the daughter had any idea that was a potential outcome when they signed the documents.

This is an important reminder to always read what you sign – and that it’s helpful to get assistance from someone who can advise you about unexpected consequences, such as the waiver of the right to a trial – because sometimes simple forms have complicated, unintended consequences.

Are State (Prop 13) and Federal Estate Tax Laws limiting home inventories for sale, resulting in a permanent commitment to higher prices and unfair capital gains treatment between surviving spouses and senior couples selling their homes? The solution may be federal legislation to eliminate capital gains for seniors by eliminating the current 250,000 per person exemption Capital Gains Tax.

The positive side effects of allowing seniors (age 65) to sell their homes and personally owned commercial property capital gains tax-free are as follows:

1. It is fair to all seniors age 65 and older by giving all equal financial options.
2. It should increase the inventory of real estate, making the market more competitive.
3. It will increase local tax revenues, because under Proposition 13, the property tax base increases by only 2% per year, unless real property is sold, at which point it increases to current market value. Seniors selling tax free will bring in a current market price taxpayer, and raise the property taxation base to current market value.
4. It frees up dead equity capital and moves some of it into the free market.
5. Help relieve the Proposition 13 constraint upon real estate sales, and as a result develop more property tax revenue without changing the Proposition 13 legislation.
6. Schools should be the #1 beneficiary of increased property tax revenue.

Why do some seniors pay huge capital gains when selling their homes while others pay nothing? The reason is a little known part of the 1981 Federal Estate tax legislation referred to as the “Step-Up-In-Basis-At-First-Death.” This provision means that a current surviving spouse can sell their home for any price with no tax obligation at all. Contrast that to a senior couple across the street that will have to pay a 24% capital gains tax on all gain above the $250,000 per person exemption. In many neighborhoods, that can now amount to a tax of $300,000 and much more on the couple, while the current surviving spouse can make the same sale and move on with no tax obligation at all.

A further point is that this step up provision doesn’t only apply to homes. It applies to both halves of the entire estate. This includes commercial property, cash, stocks, bonds – everything. This is clearly special interest legislation for the very rich to eliminate Capital Gains.

The vast majority of Californians owning homes don’t think Estate Tax legislation applies to them. They are wrong. It applies to millions of homeowners in California and in other parts of the country, who may need to sell and realize gains in excess of the $250,000 per person exemption. They aren’t rich and many can’t afford a huge tax at sale. There are an increasing number of neighborhoods where properties have appreciated more than the current $250,000 per person exemption, yet the tax only impacts the couple who must sell, not the current surviving spouse at any age.

A partial equity solution to property tax inequality would be to give equal treatment to senior couples and surviving spouses, at least with respect to real estate sales. The long-term effect of the existing Federal Estate tax legislation is to create an increasing financial incentive for seniors to stay where they are and hold property until a death occurs. It leads to limited inventories, lower potential property tax revenues in older neighborhoods and ultimately higher prices for residential and commercial real estate.

The current legislation has increasingly become special interest legislation that transfers the property and capital gains taxes to middle class homeowners and senior couples who must sell. The effects of this legislation have been over 20 years in the making. The inequities created are obvious. What will the next 20 years bring, with continuing inflation and no change in the current laws, other than increasing inequities among surviving spouses and senior couples?

Is it any wonder why California real estate values continue to rise with special interest legislation that penalizes home and commercial real estate sales by senior couples? Its unfair that some seniors get a capital gains break on the sale of their property and others do not. Eliminate the capital gains tax on property and many seniors will sell at a convenient time, which will increase housing supply and lower prices. The time for legislation to correct these effects on the real estate market is long past due.

James U. Hall, CLU, Monte Sereno

As I mentioned before, the trust(s) created by the program use California law, no matter what state you live in. A joint trust created with this program says that all property transferred to the trust will be community property. A joint trust created by this program also waives each spouse’s rights under California Family Code section 2640. Don’t know what community property is, or what section 2640 says? Too bad.

Briefly, Family Code section 2640 says that spouses have the right to be repaid for separate property they bring to the marriage, or contribute to community property during the marriage – e.g., if you own a house as a single person, then get married, and later get divorced, you don’t need to split the equity you already had in the home at the time you were married.

I think it’s amazing that the program expects people to waive their rights under 2640 without explaining what that means – that’s potentially a decision with consequences in the tens or hundreds of thousands of dollars, in the event of divorce.

Also, many people want to put separate property into a joint trust for ease of management – a well-drafted trust will preserve the separate property character of separate property assets which are titled in the name of the trust. The Suze Orman trust does the opposite.

Before printing any documents, the program makes you agree to a disclaimer that says you should consult an attorney. Unfortunately, if you’re not in CA, it may be difficult to find an attorney who wants to give you a legal opinion about CA law.

The trust included does absolutely no estate tax planning. It’s good that the authors are up-front about this, but it would be helpful if the materials on the outside of the box explained that if you’ve got more than $1 million in property, the authors think you should avoid using their program and see an attorney instead.

Ultimately, to generate an estate plan using this software, you’re going to have to click over and over again to “AGREE” to a disclaimer that tells you these documents should be reviewed by an attorney before they’re actually used; that the authors are not providing legal advice; that the authors accept no responsibility for your actions. Would you hire an attorney who gave you documents while asking you to sign a document agreeing not to sue them if the document turned out to be useless, or worse?

The trust created by the program can be modified entirely after the death of the first spouse – so there is no protection in place to preserve assets for the joint children if the surviving spouse remarries or needs Medicaid-funded nursing home care.

The documents provided to change beneficiaries for IRA and 401(k) plans have no discussion of – and make no provision for – planning for “stretch” IRA distributions, and in fact make “stretch” planning impossible, which might potentially mean losing out on tens or hundreds of thousands of dollars due to the missed stretch opportunity.

Even though the attorney who co-wrote the software is licensed in California – and California is the forum state mentioned in the choice of law clause – the estate plan makes no provisions for California property tax planning for beneficiaries who may inherit real property. If you’ve lived in California, you’ll appreciate the importance of preserving your Proposition 13 property tax assessed value for your children, and their children .. if your estate plan was drafted with that end in mind. There may be similar issues for people who live in other states – I’ve got no idea if there are or not, and you probably don’t either, unless you find someone who knows your local law.

The program doesn’t cost much money and has some educational value. So it’s not a total waste. The plan and the documents it produces are a long way away from what a good estate planning attorney can produce – but what’s really missing here is an overall understanding of the family’s assets, values, risks, and opportunities .. together with a comprehensive plan to address those circumstances.

I’m an estate planning attorney in CA – but I don’t really think of a software package that costs less than a large pizza as a meaningful competitor, especially after trying it out to see what it produces. I wouldn’t mind at all if potential clients of mine used the software to play around at home to get comfortable with some of the terminology and issues that are part of putting together a real estate plan – but there’s no way I’d recommend this to someone I cared about as a good way to create an estate plan that they actually planned to sign and use.

I’m still shocked by the decision to make trusts for all states subject to California law – that’s the kind of advice that can only be given responsibly by someone who understands California law, the law of your state, and your personal circumstances. There are cases where I might choose to have a client’s trust be governed by the law of another state – but those cases are relatively rare, and I can articulate clear, concrete reasons to do so. A blanket choice that everyone, everywhere, should use California law strikes me as inappropriate.

Some pet owners choose to put together a comprehensive care plan for their pets in the event that the pets outlive their owners. Those plans typically include directions about the feeding, medical care, and other needs of the pet .. along with funds necessary to provide for the pet’s support and to compensate human caregivers.

Other pet owners have close family or friends with pet-friendly homes and can provide a long-term home for the pet if the need arises.

However, some pet owners find themselves in a situation where they do not have the resources to fully fund their own pet mainentance trust, and they do not have family or friends who are able to welcome the pets into their homes. In this relatively common circumstance, programs such as TLC for Pets or the San Francisco SPCA’s SIDO Program provide a valuable public service.

In practical terms, this means that Mom & Dad, in 2006, will probably be paying property taxes of between $1,000 and $1,500 per year on their home that’s worth $1,000,000. Let’s imagine another couple purchases the home next door to Mom & Dad, which turns out to be identical to Mom & Dad’s house – and the fair market value (FMV) is also $1,000,000. The new couple will pay approximately $10,000 per year in property tax, where Mom & Dad will pay closer to $1,000.

This ability to retain the old assessed value represents a considerable opportunity to avoid paying property taxes.

An important part of estate planning – often overlooked by attorneys who don’t spend a lot of time working on estate plans, and virtually always overlooked by do-it-yourself software kits and books – is working to preserve the opportunity for heirs to keep the favorable low property tax valuation, in the event that the heirs choose to continue to own the property instead of selling it.

As discussed in the previous message, let’s say that Mom stays in the home after Dad’s passing, and that when Mom passes away the home is now worth $1,500,000. Mom’s estate plan provides that the home will go to her son and her daughter, each taking a 50% interest.

Son and Daughter will get to keep Mom’s favorable property tax valuation; California law provides that property tax will not be reassessed on a transfer between parents and children. The transfer of 1/2 of the property from Mom to Son and 1/2 of the property from Mom to Daughter qualifies as a transfer that’s exempt from reassessment.

Let’s say that Daughter’s already got a house she wants to stay in – but Son wants to live in the family home, so he arranges to get a mortgage so he can purchase Sister’s half from her, and Son can own the home as his own.

The wrong way to set this up is the obvious way – Son buys the other half of the house from Daughter. Now, Son will get to use the favorable valuation for the half of the property he inherited from Mom, since that was an exempt transfer .. but the half of the house that Son purchased from Daughter will be reassessed, because sibling-to-sibling transfers aren’t exempt. Now, instead of paying a property tax bill of $1000 to $1500 per year, Son’s property tax bill will be more like $8000 per year (1/2 of $1,000 + 1/2 of $15,000).

If Son keeps the family home for 20 more years, the failure to plan for favorable property tax treatment will cost Son $140,000 in extra property taxes. If Son then passes the property on to his children at his death, then his kids will be paying property tax bills of $8000 instead of $1000, and the waste continues.
Unfortunately, this approach is what you’re likely to end up with if you (or your attorney, or your do-it-yourself software) aren’t paying attention to property tax planning – it’s easy to conclude “well, there are no estate tax issues here” and stop thinking. That decision to stop thinking can cost heirs an awful lot of money pretty quickly.

This isn’t a hypothetical example – I have worked on several cases where the estate plan was drafted by an attorney (or worse, an annuity salesperson) who didn’t know or care about property tax, and the consequence is tens or hundreds of thousands of dollars in unnecessary property taxes for the heirs.