San Diego California Estate Planning, Probate and Living Trusts Attorneys Armstrong, Fisch & Tutoli, Attorneys at Law

Educational FYIs
These recent developments and case studies address any aspect of the law that touches on estate planning. They offer an interesting perspective and/or warning. The frequency of release varies from month to month and week to week. Our purpose for sharing these Educational FYI's to you is to further enlighten you on the many variables involved in the fine balancing act of proper estate planning.

Armstrong, Fisch & Tutoli, Attorneys at Law releases important estate planning and related articles on a regular basis. Please take a moment to register to receive full access to our Educational Alerts and FYIs.

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Article on Family Caregivers
The Sunday, September 9, 2007 issue of Parade magazine contains an article by Gail Sheehy on family caregiving. It will recount some of her own experiences as a spousal caregiver to her husband.

Estate Tax Repeal Vote Fail in Senate
Late Thursday, August 3, 2006, the Senate voted on an estate tax reform proposal that was came to close to full repeal and the republicans did not get the 60 votes they needed to pass it. The vote was 56-42!

June 7520 Rate
The Section 7520 rate (used to calculate life and remainder interests) for June 2006 will be 6.0%. This is slightly higher than the May and April rates.

An Essay on Issues Involving the Older Driver
Eighty-six year-old George Weller's killing of 10 when he accelerated instead of braked at a Santa Monica, California market in July 2003 captured the public's attention dramatically. The Weller tragedy again reminded us that we face a growing problem: The aging process will in some way affect the driving habits and skills of most of our clients. Court intervention regarding older drivers is increasing in that probate judges address driving as fiduciary concerns for guardians and conservators. George Weller's court intervention came through the criminal bench as he was indicted on 10 counts of manslaughter in January 2004. Ideally, family members, health care providers, elder-law attorneys/estate planners and fiduciaries should assist aging loved ones/patients/clients in planning before driving skills decline and address what happens after the car is gone.

Article of Interest on Intestacy
You may be interested in reviewing the article on the laws of intestacy in the various states.

Insurance on Retirement Accounts Increased
The FDIC and Credit Union insurance coverage on retirement assets such as Individual Retirement Accounts and 401(k)s has recently been increased to $250,000 from $100,000.

Equitable Estoppel Doctrine Not Available Where Medicaid Eligibility Worker Gave Wrong Advice
A State Medicaid eligibility worker advised the son of a beneficiary that her estate would not be subject to a claim after her death, and that if he wanted to preserve the family home all he needed to do was to state that his mother intended to return home. The worker was wrong.

Photocopy of Will is Not "Duplicate Original"
After a decedent's death, his original 1987 will could not be located. However, a photocopy of that will was in his personal papers. There was no indication of any intent to revoke the will other than the fact that the original was missing.

Personal Representative's Attorney Fees Chargeable Against Estate
The personal representative, in an estate administration contest, filed a seventh accounting and a request that the estate be closed. Family members objected, accusing the personal representative of conflicts of interest and failure to advise the beneficiaries about actions proposed to be taken by the decedent's partner (who was also a client of the personal representative). The personal representative retained counsel and the parties participated in extensive litigation resulting in the trial court removing the personal representative, denying requests for surcharge against him, and denying his request for payment of $589,441.28 in attorney's fees and costs.

Constructive Trust Imposed on Proceeds of Property Sale Transferred to Joint Ownership
The agents under a durable power of attorney arranged for sale of real property (specifically devised in principal's will to her stepson) to agents' relatives for substantially less than the assessed value of the property. The proceeds were placed in bank accounts in joint names with agents. After the principal's death, the agents were appointed as personal representative of the principal's estate and stepson sued.

Exception to Privileged Communications for Will Drafter Does Not Apply Where No Will Prepared
A Testator consulted his long-time law firm about drafting a new will, but no new will was ever prepared. A few days later the Testator signed a new will prepared by another, unrelated law firm.

Kaiser Commission Releases Report on the Impact of the Federal Deficit Reduction Act of 2005
The Kaiser Commission on Medicaid and the Uninsured has issued a report that summarizes the Medicaid provisions of the federal Deficit Reduction Act of 2005 (DRA) signed on February 8, 2006 and discusses the implications of the proposed changes. The changes would net projected reductions in Medicaid spending of $4.8 billion over the next five years and $26.1 billion over the next ten years.

Genetic Link to Parkinson's Disease Found
A recent study has identified a single genetic mutation that accounts for more than 20 percent of all cases of Parkinson's disease in Arabs, North Africans and Jews. This is a major surprise, as genetics was thought to play a relatively minor role in the cause of Parkinson’s disease. Although the mutation is rare in people with ethnic roots outside the Middle East, its discovery raises the prospect that undiscovered mutations may be major causes of Parkinson's in other groups.

Drugs Effective in Treating Mild to Moderate Alzheimer's Disease
Three drugs -- Aricept, Razadyne, and Exelon -- may make some modest improvement in mental function for those persons suffering from mild to moderate impairment in mental functions due to Alzheimer’s disease. The finding come from a review of 13 studies of the drugs. The review appears in The Cochrane Library, a research journal.

Commission Considers Separating LTC Component of Medicaid
The Medicaid Commission, which is looking into ways to improve the government program is mulling over the possibility of separating long-term care financing from Medicaid.

Social Security Death Benefit Eliminated in Bush Budget Proposal
The $255 Social Security death benefit will be eliminated under the Budget proposal submitted to Congress on February 7, 2006 by the President. White House officials defended the proposals and estimated costs would be trimmed by $3.4 billion over the next decade with the elimination of the stipend. Congressional aides said Jo Anne Barnhart, the Social Security Commissioner, had told them during a closed-door briefing that the $255 one-time death benefit has become an administrative burden, since it is not paid in all cases. Mark Lassiter, a spokesman at the Social Security Administration, said the benefit "bears no relation to what a person's funeral expenses are or to any of workers' earnings levels. We believe that eliminating it is not going to cause an appreciable financial hardship to a survivor."

New Findings on Cause of Alzheimer's Disease
If confirmed, several new findings on the origins of Alzheimer's disease could overturn prevailing theories on the cause of the disease. Scientists reporting in the Journal of Neuroscience said the neurodegenerative disease may be triggered when adult nerve cells, or neurons, try to divide.

IRS Increases PLR Fees, In Some Cases Dramatically

New PLR User Fees

The IRS has released the 2006 Revenue Procedures outlining fees for Private Letter Ruling Requests. Continue on to see some of the outlined changes:

Will Effectively Exercised Power of Appointment Even Though Not Admitted to Probate
Father (who died in 1981) established a living trust that divided into survivor's and family shares, with the former giving his surviving wife a general testamentary power of appointment and the latter giving her a power of appointment exercisable by will, deed, conveyance, bill of sale, gift or any other written instrument. If Mother did not exercise the powers of appointment, the survivor's trust would pour into the family trust, which would in turn be distributed unequally among daughter, granddaughter and grandson. Mother executed a will in 1985 purporting to appoint the entire trust corpus of both trusts; the survivor's trust was appointed outright to daughter and the family trust in equal shares among daughter, granddaughter and grandson; Mother died in 1997. Relying on advice of counsel, the trustee and family members decided not to seek probate of Mother's will.

Will's Assertion of Mistreatment by Disinherited Child is Not Grounds for Invalidity
Decedent's will specifically disinherited his only child and some of his grandchildren "by reason of their ... treatment" of him. Son challenged the will, claiming that it was improperly executed, and also that the decedent had operated under "an insane delusion that four of his grandchildren did not care about him."

Disclaimer Reformed to Avoid GST Tax
Daughter signed disclaimers of her interests in her mother's property in two different states. After the disclaimers were completed, she learned that her mother's GST exemption was only $650,000 and that the disclaimed property would be subject to the tax. She signed an affidavit indicating that she had disclaimed by mistake, and sought reformation of one or both disclaimers. State high court rules that reformation of the two disclaimers is permitted, and remands to the trial court for entry of an order authorizing the reformation.

April 2005 section 7520 rate released
The IRS has released the Applicable Federal Rate for the month of April, 2005. Each month the Service surveys interest rates and publishes the rate that is applicable for gift calculations. The rate for April is 5.0%. The rate for March was 4.6%.

Jury's Treble-Damages Finding in Undue Influence/Theft Case Set Aside by Trial Court, Restored by Appellate Court
An elderly woman was befriended by a law student, who helped her to transfer over $90,000 (in several transactions) to the law student, allegedly because the woman wanted to help her with tuition. The woman's nephew, who had power of attorney, discovered the transactions and moved to secure conservatorship and set aside the transactions.

Senator Kyl Still Fighting for Repeal of Estate Tax
Senate Finance Committee member Jon Kyl, R-Arizona, on October 23rd tried to clear up an October 22nd article in The Washington Post that claimed Senator Kyl is abandoning his push for repeal of the estate tax in favor of another plan to reform the tax.

Millions in Refund and Child Credit Checks Returned to IRS
Taxpayers have until Dec. 5 to claim 115,744 undelivered checks from this summer's advance child tax credit. After the December cut-off, taxpayers cannot claim the money until they file their tax returns next year.

IRS Releases Materials to Keep Pension Plans Eligible for Favored Status
The Internal Revenue Service released new materials, including a CD-ROM, to help small businesses and plan administrators understand how to keep employee retirement plans eligible for tax-favored status. These materials, in various formats, explain the IRS programs available to assist employee-retirement plan administrators navigate the complex tax laws. The CD-ROM, which includes video clips, is an excellent reference tool for tax practitioners and plan sponsors, says the IRS in a press release, as well as for businesses that maintain plans for their employees.

IRS Releases Important IRA PLR
In PLR 200343030, the taxpayer died at age 71. His IRA listed the beneficiary of the IRA as his estate. The taxpayer's will left his estate to his three children.

Medicaid Planning Numbers for 2004
The Center for Medicare and Medicaid Services (CMS) has released the following figures for 2004 Medicaid planning purposes.

Consumer Reports Article on LTCI is Largely Negative
If you can’t take care of yourself when you’re old, there are plenty of resources from which to choose: home-health services, adult day-care centers, assisted-living facilities, or nursing homes. Finding the money to pay for such help, however, presents a dilemma.

Medicaid Directors Ask CMS to Close Annuity Loophole
Directors of State Medicaid Agencies have authored a report asking CMS to close the loophole allowing use of annuities in Medicaid planning. They claim the use of annuities has deprived federal and state coffers of as much as $1 billion per year.

Bush Hails Economic Growth, Attributes Gains to Tax Cut Policies
President Bush drew attention October 30 to new economic figures that showed the economy grew at an annual rate of 7.2 percent during the third quarter this year, and he credited the growth to the tax cuts he has signed into law since taking office.

Power of Attorney Creates Confidential Relationship, Presumption of Undue Influence
After her husband of 28 years died, an ailing widow moved into her daughter's home. One week later daughter made an appointment with an attorney for the widow to have new estate planning documents executed. The lawyer met with the widow and the daughter's husband, then immediately prepared a power of attorney naming the son-in-law as her agent. The son-in-law took widow to nearby funeral home to sign and notarize the document. Two weeks later the widow signed a will prepared by the lawyer disinheriting her other children and leaving everything to the daughter she was living with. On her death eight months later, the widow's other children objected to the admission of the will, arguing fraud, lack of capacity and undue influence. After a jury trial court dismissed the fraud allegations, the jury found for the will proponents on capacity issue. However, the jury found for the objectors on the issue of undue influence.

Missing Will Raises Presumption of Destruction With Intent to Revoke (Remington v. Roberson)
A decedent died in a nursing home, where he had lived for ten months. His personal papers did not include the original of his 1997 will, but a copy was among his possessions. Also among his possessions was a note apparently in the decedent's handwriting and signed, but not dated. Arkansas law recognizes holographic wills.

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