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California Tax Attorney Blog
Published by Mitchell A. Port
- Revocation Of California's Advance Health Care Directive
After working with your attorney in Los Angeles to avoid probate in California by preparing your will, living trust, durable power of attorney for property management and the advance health care directive, you now decide you want to revoke the directive. How?
California law provides that a patient having capacity may revoke the designation of an agent only by a signed writing or by personally informing the supervising health care provider. California law goes on to say that a patient having capacity may revoke all or part of an advance health care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke.
In other words, you may revoke the designation or authority only if, at the time of revocation, you have sufficient capacity to make a power of attorney for health care. The burden of proof is on the person who seeks to establish that you did not have capacity to revoke the designation or authority.
Discuss your estate plan with an experienced attorney. Call Mitchell A. Port in Los Angeles at 310.559.5259.
- California Lawyer's Duty To Preserve Your Will
New California Probate Code Section 710 describes your attorney's duty of care to preserve the estate planning documents you decide to leave with him or her and which he or she agrees to keep for you. Here is what the California law provides:
If a document is deposited with an attorney, the attorney, and a successor attorney that accepts transfer of the document, shall use ordinary care for preservation of the document on and after July 1, 1994, whether or not consideration is given, and shall hold the document in a safe, vault, safe deposit box, or other secure place where it will be reasonably protected against loss or destruction.Your California lawyer's duty to hold the living trust or will in a safe, vault, safe deposit box, or other secure place is a reasonable one, and allows reasonable periods for the document to be out of safekeeping for the purpose of examination or delivery in appropriate circumstances. At all times the document should be reasonably protected against loss or destruction, although what is reasonable may vary with the circumstances.
Discuss safekeeping your California will and living trust with Mitchell A. Port, a Los Angeles estate planning attorney who drafts those documents for his clients.
- Tax Treatment Of Investment Advisory Costs
The IRS provided interim guidance with regard to the application of the 2-percent floor under Internal Revenue Code section 67 to certain investment advisory fees. Specifically, the IRS notice provides that, for taxable years beginning before January 1, 2009, non-grantor trusts and estates will not be required to “unbundled” a fiduciary fee into portions consisting of costs that are fully deductible and costs that are subject to the 2-percent floor.
On January 16, 2008, the Supreme Court of the United States issued its decision in Michael J. Knight, Trustee of William L. Rudkin Testamentary Trust v. Commissioner, 552 U.S. ___, 128 S. Ct. 782 (2008), holding that costs paid to an investment advisor by a nongrantor trust or estate generally are subject to the 2-percent floor for miscellaneous itemized deductions under В§ 67(a).
The IRS and the Treasury Department expect to issue regulations under § 1.67-4 of the Income Tax Regulations consistent with the Supreme Court’s holding in Knight. The regulations, however, will not be issued in time to be applicable to the 2008 taxable year.
- California Tax Information For Same-Sex Married Couples
An advance draft copy of a California tax form for same-sex married couples is now available. It is subject to change and Franchise Tax Board (FTB) approval before it is officially released. This form includes the 2008 legislative changes. It will likely be released by the FTB as Publication 776.
This publication is primarily to assist same-sex married couples (SSMC) in filing their California income tax returns, if they have SSMC adjustments. The FTB has also included information about the legal history of SSMC and community property that may be useful in completing the return.
On June 20, 2008, the FTB issued NOTICE 2008-5 on the subject of California Income Tax Treatment and Tax Return Filing Obligations of Same-Sex Married Couples. The purpose of the Notice is to advise same-sex married couples of their California income tax treatment and tax return filing obligations resulting from the California Supreme Court's recent decision in In re Marriage Cases (2008) 43 Cal.4th 757.
California's FTB has more information on same-sex married couples' tax obligations at its website.
- California Statutory Wills Are Free
Questions and answers about California’s Statutory Will are presented here and in California Probate Code Section 6240.
The following information, in question and answer form, is not a part of the California Statutory Will. It is designed to help you understand about Wills and to decide if this Will meets your needs. This Will is in a simple form.
1. Does a Will avoid probate? No. With or without a Will, assets in your name alone usually go through the court probate process. The court's first job is to determine if your Will is valid.
2. Are there different kinds of Wills? Yes. There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires. You should see a lawyer if you do not want to use this Statutory Will or if you do not understand this form.
3. What can a Will do for me? In a Will you may designate who will receive your assets at your death. You may designate someone (called an "executor") to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a "guardian") to raise your children who are under age 18. You may designate someone (called a "custodian") to manage assets for your children until they reach any age from 18 to 25.
4. Does my Will give away all of my assets? Do all assets go through probate? No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse, domestic partner, or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these types of "nonprobate" assets pass at your death.
5. What happens if I die without a Will? If you die without a Will, what you own (your "assets") in your name alone will be divided among your spouse, domestic partner, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
6. May I change my Will? Yes. A Will is not effective until you die. You may make and sign a new Will. You may change your Will at any time, but only by an amendment (called a codicil). You can give away or sell your assets before your death. Your Will only acts on what you own at death.
7. When should I change my Will? You should make and sign a new Will if you marry, divorce, or terminate your domestic partnership after you sign this Will. Divorce, annulment, or termination of a domestic partnership automatically cancels all property stated to pass to a former husband, wife, or domestic partner under this Will, and revokes the designation of a former spouse or domestic partner as executor, custodian, or guardian. You should sign a new Will when you have more children, or if your spouse or a child dies, or a domestic partner dies or marries. You may want to change your Will if there is a large change in the value of your assets. You may also want to change your Will if you enter a domestic partnership or your domestic partnership has been terminated after you sign this Will